CVV16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 590
•25 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CVV16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 590
File number: PEG 48 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 25 March 2021 Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – whether IAA misapplied “real chance” test – whether IAA misunderstood applicant’s claim – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), pt 7AA, div 3, ss 5, 36, 46A, 473CA, 473C, 473DB, 473DC, 473DD, 473GA, 473GB, 476 Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 96 Date of hearing: 23 March 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms K Hooper Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 48 of 2020 BETWEEN: CVV16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 MARCH 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival in October 2012 (Court Book (“CB”) 87).
On 10 December 2015, the first respondent (the “Minister”) “lifted the bar” under s 46A of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a protection visa (CB 130).
On 25 February 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 5-103). The applicant feared harm on the basis of his Tamil ethnicity and suspected links to the Liberation Tigers of Tamil Eelam (the “LTTE”).
On 23 June 2016, the applicant attended an interview with a delegate of the Minister (CB 104-120).
On 25 July 2016, the delegate refused to grant the applicant the visa (CB 172-141). The delegate was not satisfied that the applicant faced a real chance or a real risk of serious or significant harm.
On 26 July 2016, the applicant’s application was referred to the Immigration Assessment Authority (the “IAA”) pursuant to s 473CA of the Act (CB 149-161).
On 14 August 2016, the applicant provided supporting documents to the IAA (CB 163-181).
On 23 September 2016, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 183-198).
The applicant sought review of the IAA’s decision dated 23 September 2016 in this Court. On 26 November 2018, a judge of this Court dismissed the applicant’s application for judicial review.
The applicant appealed that decision to the Federal Court. On 15 November 2019, the Federal Court made orders setting aside the IAA’s decision and remitting the matter to the IAA for reconsideration (CB 201-202).
On 17 and 18 December 2019, the applicant provided further supporting documents to the IAA (CB 204-327). This information included a copy of the documents filed in the Federal Court judicial review proceedings, a letter from the applicant’s father to the Human Rights Commission in Sri Lanka, numerous country information documents and a statutory declaration of the applicant.
On 23 December 2019, the applicant provided written submissions and further country information (CB 338-428).
On 14 January 2020, the IAA again affirmed the delegate’s decision not to grant the applicant the visa (CB 434-455).
On 10 February 2020, the applicant filed an application for judicial review of the IAA’s decision dated 14 January 2020 in this Court. The application is brought pursuant to s 476 of the Act. To obtain assistance, the applicant must show that the IAA has fallen into jurisdictional error.
THE IAA’S DECISION
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” - defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s 473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act. That section provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in relation to this matter is 22 pages long and spans 72 paragraphs. Four pages contain the relevant legislative provisions. Those provisions are summarised at [44]-[45] and [68]-[69] of the IAA’s decision.
The IAA began by providing an overview of the procedural history of the application (at [1]-[3]).
The IAA then confirmed that it had had regard to the material referred by the Secretary under s 473CB (at [4]). The IAA further confirmed that it had received documents from the applicant on 12 August 2016 and 16 and 17 December 2019 (at [5]).
The IAA noted that the applicant’s statutory declaration and his submissions addressed the delegate’s decision and the previous IAA’s decision, clarified the applicant’s claIms and addressed the “new information” (at [6]). Accordingly, the IAA had regard to these documents.
In relation to the new information, the IAA noted that:
(a)the “Federal Court determination documents” were not before the delegate and could not have been provided to the delegate. They explained the history of the August 2016 documents and the IAA was satisfied that “exceptional circumstances” existed. The IAA considered the Federal Court determination documents (at [7]);
(b)the complaint lodged with the Human Rights Commission of Sri Lanka was not “new information”. However, to the extent that it could be “new information”, it was credible personal information and exceptional circumstances existed to justify its consideration (at [8]);
(c)the letter from a pastor which the applicant provided to the IAA was also the subject of submissions requesting the IAA call the pastor. The IAA made no negative findings in regard to the letter and did not obtain any information from the pastor (at [9]);
(d)the country information provided by the applicant’s representative post-dated the delegate’s decision and provided updated information on the situation in Sri Lanka. Accordingly, the IAA considered the information (at [10]); and
(e)the most recent Department of Foreign Affairs and Trade report was obtained by the IAA and considered in the course of assessing the application (at [11]).
The IAA then summarised the applicant’s claims as follows (at [12]):
•The applicant is a Tamil from Jaffna District, Sri Lanka.
•The applicant’s younger brother and his great-grandmother were killed in 1994 when their home was hit by a bomb during the civil war.
•One of the applicant uncles was killed by the Indian Army in Sri Lanka in 1994 when he was mistaken for someone else.
•The applicant was prefect at his secondary school and in this role he became involved in Tamil commemorative events in 2005 and 2006. He also assisted his father at a Memorial Day for Tamil martyrs and he believes he was filmed at this event.
•In 2008 the applicant was in the vicinity of the bus stop when unknown persons on a motorbike attempted to shoot him.
•On 2 May 2009 unknown people came to the family home and accused the applicant of working for the Liberation Tigers of Tamil Eelam (LTTE). They damaged some furniture and took the computer the applicant was working on.
•After completing his schooling the applicant decided to leave the Jaffna area as he was concerned for his safety in the area and with his father he travelled to Vavuniya.
•On 14 January 2010 the applicant was kidnapped in Vavuniya. He was taken to an unknown place where he was tortured and accused of having helped the LTTE. He was held for 12 days without food or water. After this he was dropped at the Vavuniya bus station where his father collected him. He has a scar from the torture.
•On the day of his release from detention he received hospital treatment for a few hours which involved stitches, a tablet, and being fed breakfast. After this he was cared for by his mother at home.
•On 29 January 2010 the applicant with the assistance of his father attended the HRCSL where a complaint was lodged. The applicant has provided a copy of the complaint lodged by his father to the HRCSL, and English language translation, and acknowledgement by the HRCSL of the complaint, and a copy of a letter from the pastor of [omitted] church in support of his claims.
•After three to four months the applicant went to work at a bike shop, stayed in hiding and did not return to his parents’ home.
•In 2012 two people went to the family home to enquire about the applicant.
•The applicant was concerned for his safety and decided to live Sri Lanka. He departed illegally by boat in September 2012.
•The applicant was targeted for harm in Sri Lanka and he believes this was for reason of his involvement as a student and supporting his father in Tamil events and that the Sri Lankan government may be aware of the kidnapping and shooting of his uncle by the Indian Army in 1994.
•He is aware of incidents with Tamil Tigers and the government still occurring in Sri Lanka and has heard of two people who were sent back to Sri Lanka and arrested at the airport.
•He fears harm in Sri Lanka from the authorities, rebels and militia on the basis of his Tamil ethnicity and suspected association with the LTTE.
•The submission to the IAA contends that the applicant’s risks have particularly increased since the election of President Gotabaya Rajapaksa and that Tamils now live in fear in Sri Lanka. The IAA submission provided information regarding the election of the new President and the concerns of the Tamil community as to their safety in the light of his role as Defence Minister and his involvement in “mercilessly” crushing the LTTE at the end of the civil war.
The IAA accepted that it was plausible that the applicant’s younger brother and great grandmother were killed in a bomb blast (at [14]). The IAA also accepted that one of the applicant’s uncles was killed by the Indian Army (at [15]). The IAA further accepted that the applicant departed Sri Lanka illegally (at [16]) and that the applicant was involved in organising Tamil commemorative events at his school (at [17]).
The IAA found the letter from the Human Rights Commission of Sri Lanka supported the applicant’s claims (at [18]) and accepted that the applicant’s father had lodged the relevant complaint (at [19]).
The IAA noted that one of the documents (the letter from the Rural Development Society) was partially in English and that the dates that appear on this correlate with the dates of claimed incidents (at [20]).
The IAA determined that the pastor’s letter and the letter from the Rural Development Society were an account of events based on what the authors had been told and were not “first-hand” knowledge (at [21]-[23]). Accordingly, little weight was placed on these documents.
The IAA had significant difficulty accepting that the applicant was of interest to the Sri Lankan authorities because of his participation in commemorative Tamil events or the killing of his uncle (at [24]-[26]). The IAA noted that the applicant’s participation in events was conducted openly and if the authorities had any concerns they would have taken action against the applicant at that time (i.e., in 2006) and not waited until 2008 (at [27]).
In light of the applicant’s low level involvement in Tamil activities, the IAA had difficulty accepting the applicant’s claim that he was involved in a shooting incident in 2008 (at [28]). The IAA noted inconsistencies in the evidence before it and considered the applicant’s submissions in relation to these inconsistencies. The IAA found it difficult to reconcile the inconsistencies. The IAA did not accept that the inconsistencies resulted from interpretation errors and found that, in light of the level of concern that was shown, it was implausible that the event was not reported to the authorities (at [29]-[30]).
At [31], the IAA stated:
The applicant’s claim is that on 2 May 2009 unknown people who were armed came to the family home, took the computer he was working on and accused him of supporting the LTTE. I note the variation as to whether this was two people or four people however I consider this to be minor and I note the comments in his submission to the IAA which seek to explain this matter. Even putting this matter aside I find the applicant’s account of this incident implausible in part. The date of the claimed event is significant. In May 2009 the government offensive against the LTTE was at its height; government forces had progressively pushed the remnants of the LTTE into ever reducing territory and as part of security arrangements put in place thousands of displaced Tamils were moved to camps where they were detained for many months and government agencies, and paramilitaries working with them, were active in detecting and detaining those they suspected of being LTTE members or supporters across the Northern Province, which includes Jaffna. Considering the prevailing climate of suspicion which resulted in the detention of many thousands of Tamils on the basis of suspected LTTE links I have difficulty reconciling that people would come to the applicant’s home and accuse him of being linked to the LTTE but not detain him. In the account of this incident as given in the letter to the HRCSL dated 29 January 2010 the applicant’s father refers to the assailants attempting to drag the applicant from the house but leaving when his mother cried out, despite the fact it is stated they were armed. I do not accept that if the applicant was suspected of being linked to the LTTE that he would not have been detained at the time and that these people, who he claimed were armed, would have left simply because his mother was screaming.
The IAA accepted that the applicant’s claim to have been kidnapped was to some extent plausible. However, the IAA considered the applicant’s account of what occurred subsequent to the claimed kidnap (i.e., that he was not given food or water for the 12 days he claims he was held) to be of “significant concern” (at [32]).
The IAA detailed the applicant’s claim to be kidnapped and the evidence provided in support of that claim. It expressed difficulty accepting various parts of the applicant’s claim and evidence and found it difficult to accept that the applicant was targeted for the kidnapping as he claims (at [33]-[34]).
While the applicant may not have been living at the family home after 2010, the IAA did not accept that the applicant was in hiding (as he claimed) as the information suggested that the applicant was in contact with the authorities at this time and the country information indicated the authorities would have had the means to locate him had he been of interest (at [35]).
The IAA noted that the applicant was released by his kidnappers and there was no indication that he was required to report anywhere or was monitored. Accordingly, the IAA found it difficult to accept that the authorities visited the applicant’s home in 2012 (at [36]).
The IAA then stated that it had significant concerns with aspects of the applicant’s claims. While the letter from the Human Rights Commission of Sri Lanka supported the applicant’s claims in part, the IAA was not satisfied that these occurred in the manner described by the applicant or occurred because the applicant was of ongoing interest to the authorities (at [37]).
The IAA accepted that the applicant as a Tamil may have been subject to regular security checks and may have been subjected to incidents where people acted against Tamils. However, the IAA considered that the applicant exaggerated his account of these incidents and claimed he had a profile of specific interest in an attempt to enhance his protection claims (at [38]).
The IAA was not satisfied that the applicant was of adverse interest to the authorities, paramilitary groups working with the authorities or others for reason of his Tamil commemoration activities or the killing of his uncle. The IAA viewed the fact that the applicant was not detained in 2006 or 2009 as an indication that the applicant was not of interest for his past activities (at [39]).
While the IAA accepted that the applicant had witnessed armed people on a motorbike in 2008, in light of the fact that the IAA did not accept that the applicant had a profile of concern, the IAA was not satisfied that these people intended any harm to the applicant. The IAA also did not accept that unknown people shot at or aimed at the applicant or that his friend was shot in front of him (at [40]).
The IAA accepted that in 2009 people came to the applicant’s house and took his laptop. However the IAA did not consider that this was “targeted”. The IAA did not suspect that these people genuinely believed the applicant had LTTE links as, if that was the case, he would have been detained. Further, the IAA determined that “his mother screaming” would not have deterred the attackers – particularly at the height of the government’s attack on LTTE supporters. The IAA found that the attack was an opportunistic criminal act and the applicant was not specifically targeted (at [41]).
The IAA considered the applicant’s claims to have been detained for 12 days without sustenance to be far-fetched. The IAA was willing to accept that the applicant was stopped by authorities but did not accept that the applicant was specifically targeted.
The IAA did accept that the applicant may have been detained for a period of time and was physically mistreated while held and that he sustained scarring as a result (at [42]).
The IAA continued:
43. I have not accepted at the applicant was of interest to the authorities or others because of his involvement in Tamil commemorative events in 2005 and 2006 or because of the killing of his uncle and I am not satisfied that the authorities or others had an interest in the applicant in 2012 for these or other reasons. I do not accept that in 2012 people came to the family home and asked about the applicant.
The IAA accepted that the applicant was involved in Tamil commemorative events and that his uncle was killed, that he saw armed men at the bus stop in 2008 and “was concerned”, that his computer was taken in a home invasion in 2009 and that he came to attention of a paramilitary group in Vavuniya in 2010, was questioned by them and mistreated and that he has a scar from this event. The IAA noted that it did not accept that the applicant was shot at in 2008, that the people came to his family home because he was suspected of supporting the LTTE, that he was detained for 12 days in 2010 or that the authorities or others visited the family home in 2012 (at [46]).
The IAA considered that, in any event, even if it were to accept the applicant’s claims in their entirety, as the security situation in Sri Lanka has changed significantly since the applicant departed in 2012 the IAA was not satisfied that there was a real chance he would be harmed should he return to Sri Lanka (at [46]).
The IAA explained that the death of the applicant’s brother, great-grandmother and uncle all occurred in the context of the Sri Lankan civil war. It noted that this occurred in an environment of armed paramilitaries in conflict with the LTTE. However, the IAA determined that there had been a significant change in the security situation in Sri Lanka and Tamils are not now the subject of the same abuse and mistreatment that was prevalent during the civil war and in the aftermath of the conflict (at [47]).
The IAA then summarised the country information relevant to the civil war, its aftermath and in the current era (at [48]-[51] and [53]).
The IAA addressed the applicant’s submission that it would not be safe for him to return in the current political climate and under the new President. The IAA found that there was no indication that the new government intended to introduce repressive policies that would impinge on the Tamil population in general, or that this would be the result of the change of government. The IAA considered that reports suggesting a return to authoritarian rule under the new government were speculative and was not satisfied that the reports substantiated the concerns that Tamils will face harm as a result of the change in government (at [52]).
The IAA accepted that the new government may continue to suppress attempts to bring human rights abusers to justice or to prosecute those responsible for war crimes. However, the IAA was not satisfied that such actions would impinge on the Tamil population in general or Tamils with a profile similar to that of the applicant (at [54]).
The IAA continued:
55. I accept that there continue to be reports of harm to Tamils in Sri Lanka and I note the reports from the International Truth and Justice Project and the UN Special Rapporteur on human rights and counter-terrorism. The International Truth and Justice Project cited ongoing mistreatment of LTTE members who are routinely tortured, indicating a “high level of paranoia and persecution that is utterly at odds with the Sri Lankan Government’s rhetoric of reconciliation.” The UN Special Rapporteur on human rights and counter-terrorism reported that those detained in Sri Lanka under the Prevention of Terrorism Act complained of torture. But it is important to note that those of interest to the authorities are those with links to the LTTE and I have not accepted that the applicant was of interest to the authorities or others or imputed as having an LTTE profile or that he would be should he return to Sri Lanka.
56. Even if I were to accept he was imputed as being an LTTE supporter in Sri Lanka for reason of his activities as student or the killing of his uncle, which I do not, I am not satisfied that the low level of such activities would attract adverse attention or cause him to be perceived as an LTTE supporter now or in the foreseeable future. The International Truth and Justice Project report provides insight into the profiles of people came to adverse attention in Sri Lanka in 2016/2017 and while not all those interviewed reported high profile activities I note that the subjects of the study reported activities such as setting up venues for political meetings and getting people to sign petitions to set up a UN war crime tribunal, involvement in publicity work for “big protests in Geneva”, fund raising for protests, evading rehabilitation in Sri Lanka after having been recruited by the LTTE as child soldiers or having family links to LTTE members/fighters. I accept that the applicant is concerned about reports of mistreatment of returned asylum seekers but taking into account the low level of the applicant’s activities and the span of time since the end of the civil war I am not satisfied that should the applicant return to Sri Lanka he would be of interest to the authorities or others. There is no indication that the applicant has been involved in any activities in Australia that would attract adverse attention as a returning failed asylum seeker.
The IAA noted that the applicant had not claimed to fear any harm as a result of his scarring and was, in any event, not satisfied that he would face harm for this reason as the country information did not indicate that those with scarring were of interest or concern to the authorities (at [57]).
The IAA then stated that there was no evidence that the applicant had attended Tamil commemorative events after 2006. However, even if he did attend such events the IAA was not satisfied that the applicant would be harmed as a result of doing so (at [58]). Attendance at such events was not a matter of concern to authorities in the absence of any other profile or activities of concern.
Accepting that the applicant departed Sri Lanka illegally and would be the subject of provisions of the Immigrants & Emigrants Act 1949 (SL) (the “I & E Act”) on return (at [59]), the IAA then summarised various country information sources on the treatment of those in this situation (at [60]-[63]). The IAA was satisfied that any harm experienced in a brief period of detention did not amount to serious harm and the investigation, prosecution, punishment or detention of the applicant under the I & E Act would be the result of law of general application (at [64]-[65]).
The IAA then concluded:
66. I have not accepted that the applicant was imputed with an LTTE profile when he left Sri Lanka in 2012. Nor am I satisfied that he would be should he return to Sri Lanka now or in the reasonably foreseeable future. Furthermore I have found that the extent of his activities was limited and would not attract attention now or in the reasonably foreseeable future, even considered together with him being a young Tamil male with scarring from the Northern Province whose uncle was killed by the IPKF, whose family members were killed in a bombing, who left Sri Lanka illegally and would be returning as a failed asylum seeker. I have accepted that he was subject to a criminal home invasion but I am not satisfied that there is more than a remote chance he would experience similar harm in Sri Lanka. I do not accept he would be harmed by the authorities, paramilitaries, militia, rebels or others. Considering the totality of the material before me, I am not satisfied that there is a real chance that the applicant would be persecuted on return to Sri Lanka.
The IAA was not satisfied that the applicant met s 36(2)(a) of the Act (at [67]).
In relation to the complementary protection criterion, the IAA stated:
70. I accept that the applicant will be identified on return as a person who departed illegally and that he will be investigated and detained for several hours at the airport, and possibly detained on remand for some days pending bail, and then fined. I accept that the applicant may be subjected to poor conditions during any possible brief period of detention but country information confirms that this is due to overcrowding, poor sanitation and lack of resources. I have also accepted that the applicant will be questioned, charged, briefly detained and fined under the I&E Act with the offence of leaving Sri Lanka illegally. But this questioning, charges and fine or briefly being detained does not amount to the death penalty, arbitrary deprivation of life or torture and the evidence does not indicate there is an intention to inflict pain or suffering or severe pain or suffering or cause extreme humiliation. I am not satisfied that this treatment, either during the investigation process or while being held at the airport or on remand, amounts to significant harm.
71. I have otherwise found there is not a real chance that the applicant faces harm on any of the bases claimed. Noting that the “real risk” test for complementary protection is the same standard as the “real chance” test, and based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for these reasons.
The IAA was not satisfied that the applicant met s 36(2)(aa) of the Act (at [72]).
Accordingly, the IAA affirmed the delegate’s decision not to grant the applicant the visa.
PROCEEDINGS IN THIS COURT
In the judicial review application filed 10 February 2020, the applicant provides two grounds of review, as follows:
The Immigration Assessment Authority committed the following errors:
Ground 1
Having accepted that the applicant was kidnapped and ill-treated, the IAA failed to consider whether this past event indicates that he is likely to be at risk of harm in the future from the SL government security agencies or the paramilitary that work hand in hand with the Sri Lankan security agencies.
Ground 2
At [31] the IAA disbelieved the applicant was harassed on 2 May 2009 at his home because the country information it relied on states that the Sri Lankan security power had wide power to arrest anyone suspected of LTTE connection, and therefore if he was suspected for being LTTE member, the security agencies would have taken him and not let him go just because his mother screamed. The error committed by the IAA in this finding was that the country information it relied on was the country information on what was happening at Mulativu whereas the applicant was living is in Jaffna. Furthermore, the IAA failed to consider that the people who came to take the client away was doing it illegally. It was a kidnapped attempt that failed. The sweeping power that the IAA refers to are powers to be executed by legal means.
At the time of filing his application in this Court, the applicant was legally represented. However, on 28 January 2021, the applicant’s lawyer withdrew from representing him. Thereafter, the applicant has been without legal representation. This is regrettable.
The materials before the Court include the application for judicial review dated 10 February 2020, a Court Book numbering 455 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 9 March 2021.
At the hearing, the Court confirmed with the applicant, who was assisted by a Tamil interpreter, that he had received a copy of the Court Book and the Minister’s submissions. He had a copy of his application, the Court Book and the Minister’s submissions with him in Court.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained that it needed to determine whether the IAA had made a jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
(b)where the decision-maker ignores relevant material: Craig at [198];
(c)where the decision-maker relies on irrelevant material: Craig at [198];
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
(e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA made a material error in coming to the conclusion that it did.
Against this background, the applicant advised the Court that he “cannot return to Sri Lanka for safety and security reasons”. He explained that he came to Australia because “he faced problems in Sri Lanka” and stressed that “the government that was in power when he left is now in power again”. The applicant also explained that “it has been nine years since he arrived in Australia and he has had to live in Australia all alone because of the threats to his safety”. The applicant further stated that “his lawyer told him that even if he wins this case, there is still a chance that he may not be granted the visa so he is making now his final claim for his safety”.
Unfortunately, the applicant’s oral submissions appeal to the merits of his claims to meet the criterion for the grant of the visa. The Court accepts that the applicant fears for his safety and that he does not wish to return to Sri Lanka. However, that it not a matter that this Court can consider on review. The applicant’s oral submissions do not assist the Court in determining whether the IAA has fallen into jurisdictional error. At its highest, his concerns express disagreement with the IAA’s decision to affirm the decision not to grant the applicant the visa.
In relation to the applicant’s concerns that “the government which was in power when he left Sri Lanka has now been re-elected”, the Court notes that the IAA expressly addressed this issue at [52]-[54] in its decision. There was no error in the IAA’s analysis this regard. The IAA’s conclusions in relation to any chance or risk of harm under the new government regime was based on country information and the IAA’s assessment of the applicant’s profile. The applicant disagrees with the IAA’s assessment of the current situation in Sri Lanka. Unfortunately, disagreement does not amount to jurisdictional error.
CONSIDERATION – GROUNDS OF REVIEW
Ground 1
Ground 1 states:
Having accepted that the applicant was kidnapped and ill-treated, the IAA failed to consider whether this past event indicates that he is likely to be at risk of harm in the future from the SL government security agencies or the paramilitary that work hand in hand with the Sri Lankan security agencies.
It is accepted that making findings as to past events of claimed harm is a guide to whether an applicant faces a real chance of harm in the future: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”).
In Guo, it was explained that:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events…
Critical in the above passage is the determination that the fact that an applicant has been the subject of harm in the past does not mean that the applicant will be the subject of harm in the future. The past is only a guide. If, for example, there has been a change in circumstances in the relevant country, then the instance of past harm may not suggest a high probability of reoccurrence: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
Here, there is no dispute that the IAA formed conclusions about past harm experienced by the applicant. However, the extent of those findings must not be overstated. The fact that the IAA accepted that the applicant was kidnapped and mistreated must be considered in the context of what the IAA found to be the circumstances surrounding the kidnapping and mistreatment. Relevantly, the IAA noted that:
(a)the applicant’s account of the events subsequent to the kidnapping (i.e., him attending the hospital and being discharged after a few hours) were not plausible (at [32]-[33]);
(b)the IAA had concerns that the applicant and his father were not detained while travelling to Vavuniya (which would have occurred if they were of interest). This suggested that the applicant was not “targeted” for kidnapping (at [34]);
(c)the IAA did not accept that the applicant went into hiding after his kidnapping and there was no indication that the applicant was required to report to any agencies or subjected to any monitoring by the authorities or the kidnappers (at [35]-[36]);
(d)the applicant had exaggerated his account to enhance his protection claim (at [38]); and
(e)the applicant was stopped as a part of an “exercise” by paramilitary groups to investigate people for possible LTTE links. The applicant was not specifically targeted and was not detained for 12 days as he claimed (at [42]).
Hence, while the IAA accepted that the applicant had been abducted and questioned (at [32] and [46]) and that he had been mistreated when abducted and questioned (at [42] and [46]), the IAA did not accept that the applicant had been “detained for 12 days” as he had claimed.
More critically, the IAA had determined that the applicant did not, despite these events, have a profile of interest to the authorities. The IAA concluded that the applicant’s abduction and mistreatment was part of a common “exercise” by paramilitary groups at the time because of the security situation.
Notably, at [46], the IAA states:
46. I have accepted that the applicant was involved in Tamil commemorative events and that his uncle was killed by the IPKF; that he saw armed men at the bus stop in 2008 and was concerned; that his computer was taken in a home invasion in 2009; and that he came to attention of a paramilitary group in Vavuniya in 2010 was questioned by them and mistreated and that he has a scar. However I have not accepted that he was shot at in 2008, that the people came to the family home because he was suspected of supporting the LTTE, that he was detained for 12 days in 2010, or that the authorities or others visited the family home in 2012. However, even if I were to accept the applicant’s claims in their entirety, which I do not, the security situation in Sri Lanka has changed significantly since he departed in 2012 and I am not satisfied that there is a real chance he would be harmed should he return to Sri Lanka.
The “real chance” test is forward looking. Here, the IAA correctly applied that test. It considered the applicant’s claims of past harm. It considered some of those claims to be implausible. Nevertheless, it found that even if it had accepted the claims, it was not satisfied that the applicant would face a chance of harm in the future. The core of that reasoning is found at [56] where the IAA (after referring to profiles of interest to the authorities) found that the low level of activity by the applicant (which he claimed was the reason for his kidnapping) and the span of time since the end of the civil war (and the kidnapping) meant that, should the applicant return to Sri Lanka, he would not be of interest to the authorities or others.
The applicant is, in effect, disagreeing with the IAA’s finding that, despite his previous experiences, he would not face a real chance of harm on return. The IAA’s reasons for finding as it did in this regard were based on the changed security situation in Sri Lanka and the applicant’s profile. On the evidence there was a rational and reasonable bases upon which the IAA could conclude that past instances of harm did not inevitably lead to a finding that that the applicant faced the same chance or prospect of similar harm in the future.
Ground 1 is dismissed.
Ground 2
Ground 2 states:
At [31] the IAA disbelieved the applicant was harassed on 2 May 2009 at his home because the country information it relied on states that the Sri Lankan security power had wide power to arrest anyone suspected of LTTE connection, and therefore if he was suspected for being LTTE member, the security agencies would have taken him and not let him go just because his mother screamed. The error committed by the IAA in this finding was that the country information it relied on was the country information on what was happening at Mulativu whereas the applicant was living is in Jaffna. Furthermore, the IAA failed to consider that the people who came to take the client away was doing it illegally. It was a kidnapped attempt that failed. The sweeping power that the IAA refers to are powers to be executed by legal means.
Ground 2 takes issue with [31] of the IAA’s decision which provides:
The applicant’s claim is that on 2 May 2009 unknown people who were armed came to the family home, took the computer he was working on and accused him of supporting the LTTE. I note the variation as to whether this was two people or four people however I consider this to be minor and I note the comments in his submission to the IAA which seek to explain this matter. Even putting this matter aside I find the applicant’s account of this incident implausible in part. The date of the claimed event is significant. In May 2009 the government offensive against the LTTE was at its height; government forces had progressively pushed the remnants of the LTTE into ever reducing territory and as part of security arrangements put in place thousands of displaced Tamils were moved to camps where they were detained for many months and government agencies, and paramilitaries working with them, were active in detecting and detaining those they suspected of being LTTE members or supporters across the Northern Province, which includes Jaffna. Considering the prevailing climate of suspicion which resulted in the detention of many thousands of Tamils on the basis of suspected LTTE links I have difficulty reconciling that people would come to the applicant’s home and accuse him of being linked to the LTTE but not detain him. In the account of this incident as given in the letter to the HRCSL dated 29 January 2010 the applicant’s father refers to the assailants attempting to drag the applicant from the house but leaving when his mother cried out, despite the fact it is stated they were armed. I do not accept that if the applicant was suspected of being linked to the LTTE that he would not have been detained at the time and that these people, who he claimed were armed, would have left simply because his mother was screaming.
Contrary to the applicant’s assertion in ground 2, the IAA did not reject his claim that he was harassed at his home in 2009. The IAA expressly accepted that this incident occurred (at [41]). What the IAA did not accept was that the reason for the harassment was because the applicant was suspected of having links to the LTTE.
The IAA’s reasons for not accepting that the incident arose because the applicant was suspected of having an affiliation were based on the country information before the IAA and a finding that it was implausible that the incident was disrupted “because of the applicant’s mother screaming”.
The applicant appears to suggest in ground 2 that the “country information” that the IAA relied upon was irrelevant to the applicant’s circumstances or did not provide a probative basis upon which to reach the conclusion ultimately reached.
The IAA refers to the following sources:
DFAT, “DFAT Thematic Report - People with Links to the Liberation Tigers of Tamil Eelam”, 3 October 2014, CIS2F827D91260; UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8; UK Home Office, “Sri Lanka March 2012”, 7 March 2012, 3523; Landinfo, “Sri Lanka: Human rights and security issues concerning the Tamil population in Colombo and the Northern Province”, 1 December 2012, CIS25286
None of these reports are before the Court. It is thus impossible for the Court to assess whether the IAA “misapplied” the country information in relation to the applicant’s circumstances (such that its approach can be considered illogical).
Further, the IAA expressly stated that the information to which it referred “includes Jaffna”. It is further noted that the IAA refers to the information before it as referencing the practice of “detecting and detaining those they suspected of being LTTE members or supporters across the Northern Province…”. As the Minister notes, this is consistent with the country information which, in its title, expressly references the “Northern Province”. The applicant’s claim was that he was a Tamil male from Jaffna in the “Northern Province”. Accordingly, the information that the IAA relied upon was entirely relevant to, and probative of, its consideration of what the prevailing security situation was at the time of the incident in 2009.
There was no error in the IAA relying on the country information it ultimately relied on and in the way that it ultimately relied on that information.
To the extent that the applicant is claiming that the IAA failed to consider that the people “who came to take him away” were doing it “illegally” and that it was a kidnapping attempt that failed, the IAA did, in fact, consider this issue and found that this was the case. The IAA stated:
41…I accept that this incident occurred, but I do not accept that the unknown people specifically targeted the applicant; rather the indications are that this home invasion was an opportunistic criminal act.
The IAA, by using the term “criminal”, has clearly determined that that the incident was “illegal”.
The IAA did not “misunderstand” the applicant’s claim. The applicant claimed that persons came to his house and harassed him as they suspected him of having LTTE links. The IAA accepted that the attackers came to his house. However, it did not accept that they did so because they suspected the applicant of having LTTE links. It was entirely open for the IAA to come to that conclusion in light of the country information. The fact that the IAA only accepted part of the applicant’s claim does not mean that it “misunderstood” the claim.
Ground 2 is, accordingly, dismissed.
CONCLUSION
The application for judicial review has failed to identify any jurisdictional error on the part of the IAA. The Court has otherwise been unable to identify any error in the IAA’s decision.
The application is, accordingly, dismissed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 March 2021
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Immigration
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