DJX17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 917
Federal Circuit and Family Court of Australia
(DIVISION 2)
DJX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 917
File number: MLG 1647 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 7 November 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to consider an integer of the applicant’s claim – whether Authority misinterpreted or misapplied relevant statutory tests in ss 5J and 36 of the Migration Act 1958 (Cth) – whether Authority decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 473CA, 473CB, 473DD, 476, 477.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.05
Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BUY15 v Minister for Immigration and Border Protection [2017] FCA 22
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 179; [1989] HCA 62
CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089
CSV15 v Minister for Immigration and Border Protection [2018] FCA 699
GLD18 v Minister for Home Affairs [2020] FCAFC 2
JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Re Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493; [1993] FCA 75
Minister for Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260
Rajadurai v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 118; [1999] FCA 125
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
SZVVE v Minister for Immigration and Border Protection [2015] FCA 837
Vo v Minister for Home Affairs (2019) 269 FCR 566; [2019] FCAFC 108
WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 26 July 2022 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Counsel for the Respondents: Ms K Whittemore Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1647 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJX17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
7 November 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
Before the Court is an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 4 July 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant relies on an amended application filed on 2 July 2022[1] which contains three grounds. The applicant alleges that:
(a)the Authority failed to consider a relevant consideration or an integer of the applicant’s claims, namely, whether the applicant’s chronic fear for his life, which was a consequence of his attempted abduction by the Karuna group, might itself amount to persecution or significant harm and whether there was a real chance that the applicant would suffer this form of harm if he returned to Sri Lanka;
(b)the Authority misunderstood or applied the wrong legal test in its interpretation or application of the term ‘real chance’ in s 5J(1)(b) and ‘real risk’ in s 36(2)(aa) of the Migration Act; and
(c)the Authority decision was legally unreasonable.
[1] The amended application was electronically lodged after 4:30pm on 1 July 2022 and is therefore deemed to have been filed on 2 July 2022, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
For the reasons explained below, I have found that there is no jurisdictional error in the Authority decision and I dismiss the application to the Court.
Background
The applicant is a citizen of Sri Lanka who entered Australia at Cocos (Keeling) Islands in October 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 18 April 2016 the applicant lodged a valid application for a Safe Haven Enterprise visa, which is a type of protection visa. In a statement that accompanied his protection visa application, the applicant claimed to fear harm from the Karuna group and the Sri Lankan authorities on the basis of his Tamil ethnicity and because of his role in the arrest of some members of the Karuna group in 2007 following their attempted kidnapping of the applicant.
On 11 October 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 2 December 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
On 4 July 2017 the Authority affirmed the delegate’s decision.
Authority Decision
The Authority accepted, based on the applicant’s consistent evidence, that he was abducted in 2007. The Authority further accepted, based on country information, that it was highly likely that the Karuna group was responsible for the abduction, as the applicant claimed. While the Authority accepted that the applicant identified the Karuna group as his abductors at the time and that he implicated the Sri Lankan authorities, it did not accept that the applicant’s particular experience was the subject of wide public discussion in parliament or in the news, or that it caused problems for the Karuna group beyond the imprisonment of its members.
The Authority accepted that while the applicant was in prison, he overheard the group planning to harm him and feared he would be harmed by persons who had been imprisoned for his abduction. The Authority accepted the applicant was afraid after his release that there would be repercussions or further harm, but found that the applicant did not suffer any further threats or harm while he remained in Sri Lanka. The applicant had identified only two further incidents between his release from prison in 2007 and his departure from Sri Lanka in 2012.
(a)The Authority was prepared to accept the applicant’s claim that in 2009 his phone was stolen from his locker and used to make threatening calls to people, and that the police suspected him but the case was dropped. However, the Authority did not accept the applicant’s claim that this incident was connected with the Karuna group or his claim that it was an attempt to have him jailed, finding that this was ‘pure speculation’ and ‘implausible’.
(b)The Authority accepted that some Sinhalese people damaged the applicant’s house in 2012, that his wife went to court, the court ordered those people not to come to the house and they did not come back. The Authority considered this to be an isolated incident which was not connected to the earlier attempted abduction of the applicant by the Karuna group.
The Authority also noted the applicant’s evidence given at his protection visa interview that nothing had happened to him between 2008 and 2012 and found that the Karuna group and the Sri Lankan authorities had ample opportunity to harm him had they intended to do so in the four years he remained in Sri Lanka.
The Authority accepted that the applicant’s family may have been questioned by the police about his whereabouts after his departure from Sri Lanka in 2012. However, the Authority did not accept that the Karuna group or other Sri Lankan authorities approached the applicant’s family in 2015 and 2016 because of any interest in him. The Authority considered that there was no evidence that the applicant was a person of adverse interest to the authorities because of his reporting of the 2007 incident or for any other reason. The applicant’s imprisonment was for his own protection and ended at his request and, while he said he was initially suspected over the phone calls, he said his case was soon dropped. The Authority considered it to be implausible that the Criminal Investigation Department (CID) would approach the applicant’s family in 2015, when it took no action against him in the four years that he remained in Sri Lanka. The Authority also considered it implausible that the Karuna group would attack the applicant’s son in 2016, given the lack of any other contact with the applicant since 2007. The Authority also considered the applicant’s evidence regarding the interrogation of his wife by the CID to be vague and contradictory.
The Authority was not satisfied that there was a real chance that the applicant would be harmed by the Karuna group, Sri Lankan authorities or any other persons in connection with the 2007 incident, the use of his phone in 2009, or the damage to his property in 2012.
The Authority did not accept that the applicant had been imputed with political support for the Liberation Tigers of Tamil Eelam (LTTE). The Authority accepted that, as a Tamil, the applicant may be subject to monitoring of the population conducted by Sri Lankan authorities, and may experience barriers in communication. However, the Authority was not satisfied that any monitoring or discrimination the applicant may experience would amount to serious harm, or that there was otherwise a real chance of the applicant suffering serious harm on account of his Tamil ethnicity, area of origin, gender or any combination of these characteristics. The Authority also was not satisfied that there was a real chance of the applicant suffering serious harm as a Tamil imputed with taking a position of resistance against the dominant Sinhalese ethnic group, as a member of the particular social group of Tamils who have criticised the government by publicly accusing them of working with the Karuna group, of Tamil men originating from a former LTTE area who are suspected of providing political support to the LTTE and who have sought asylum in a foreign country, or who have spent extensive periods of time overseas and will be suspected of past links to the LTTE on return to Sri Lanka, or any combination of these matters.
The Authority accepted that the applicant would be identified as having departed Sri Lanka illegally but found that there was not a real chance that he would be subject to harm because of his illegal departure or as a returning failed asylum seeker. The Authority found based on country information that the applicant did not have the profile that would attract adverse interest on return as a failed asylum seeker. The Authority also considered that the treatment that the applicant would face upon return as a result of breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) would not amount to serious harm. Further, the Authority found that the law is not enforced or applied in a discriminatory manner and is one of general application which applies to all Sri Lankans.
Based on an individual and cumulative consideration of the applicant’s claims, the Authority concluded that the applicant did not meet the definition of refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm. The Authority’s complementary protection finding was based on similar factual findings to those made for the purpose of the refugee assessment, as well as its finding that any mistreatment that the applicant would face upon any short period of imprisonment or detention on return to Sri Lanka would not amount to significant harm.
Proceedings before this Court
The application to this Court was filed on 28 July 2017, within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
By amended application, the applicant advances three grounds of application. Particular (a) to ground 1 was abandoned at the hearing and is not addressed. The grounds and particulars that were pressed are set out under separate headings below.
Ground 1
Those parts of ground 1 that are pressed by the applicant read as follows (emphasis in original):
The Immigration Assessment Authority (“the Authority”) fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
b) The Authority said:
“15.... Consistent with evidence he gave at the SHEV interview, some of the police documents record him as suspecting that his kidnappers were from the Karuna group, as he had seen one of them often. I accept, given country information regarding the abductions committed by the Karuna group at that time, that it is highly likely they were responsible. I also accept on the applicant’s evidence at the SHEV interview, consistent with the documents, that the abductors called him by name and were taking him to a navy base, that the attack was targeted at him personally and the navy may have had some involvement. The allegiance between the Karuna group and Sri Lankan authorities is well documented in information set out in the November 2016 submissions.
….
17.I accept that the applicant did identify the Karuna group as his abductors and that he said that he was being taken to a navy base, there by implicating Sri Lankan authorities. This is supported by the police documents.
18.….. I accept that the applicant heard this and feared he would be harmed by the persons who had been imprisoned for his abduction. I also accept the applicant was afraid after his release that there would be repercussions or future harm.”
…
22.… Although the applicant said that he was always afraid for his safety and constantly experiencing problems, he has not identified any other events, threats or harm prior to his departure from Sri Lanka. He was asked at the SHEV interview whether anything had happened between 2008 and 2012 to make it seem like his life was in danger, and said he was always living with uncertainty and did not know what would happen, so always thought they might kill him.
(CB 261-262, Decision [15]-[18], emphasis added)
In these circumstances the Authority should have considered whether the chronic situation of fear for his life, a consequence of his abduction by the Karuna Group and of the attempt on his life, was in itself serious harm such as to constitute persecution, or significant harm, to meet the requirements of sections 5H, 5J, 36(2)(aa) and 36(2)(aa) of the Migration Act 1958 (“the Act”), and whether there was a real chance the applicant may suffer this form of harm if he returned to Sri Lanka.
As can be seen, the ground is pleaded as a failure to consider a relevant consideration or an integer of the applicant’s claims for protection. It is well-established that the Authority is required to consider each of the claims for protection expressly articulated by an applicant and their component integers as well as claims that are not expressly articulated but which clearly emerge on the materials before the Authority: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [68]. Conversely, the Authority is not required to consider any claim which is not expressly articulated and which do not clearly emerge on the materials. The relevant principles were summarised in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18], where the Full Court of the Federal Court said:
It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration & Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration & Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]–[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]–[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration & Border Protection (2016) 241 FCR 214 per Markovic J (at [37]–[38])). In SZUTM, Markovic J said:
37While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38.Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
As can be seen from this extract, it is not sufficient that a claim might possibly arise from the materials before the Authority. Rather, any claim that is not expressly articulated must clearly emerge from the materials, based on established facts.
The applicant submitted that the Authority’s findings referred to in the particulars and the applicant’s express claims gave rise to an obligation on the part of the Authority to consider an unarticulated claim to the effect that the applicant living in chronic fear if he returned to Sri Lanka would itself engage Australia’s protection obligations under the refugee or complementary protection criteria. The applicant submitted that the Authority’s acceptance of his claim to have been the victim of an attempted abduction by the Karuna group in 2007, and that it did not reject his claim to live in constant fear, should have caused the Authority to consider whether returning to a chronic situation of being in fear for his life in itself amounted to serious harm or significant harm.
I do not accept that any unarticulated claim, or unarticulated integer of a claim, clearly emerged on the materials before the Authority in this matter. In order to properly explain why that is, it is convenient to first consider the manner in which the Authority dealt with the applicant’s express claim to face harm as a result of his attempted abduction by the Karuna group in 2007.
The Authority largely accepted the applicant’s claims about the attempted abduction itself and the imprisonment of some of the perpetrators after the incident. However, the Authority reached the conclusion that the applicant did not have a well-founded fear of persecution, and that he did not face a real risk of significant harm, as a result of that incident in the reasonably foreseeable future. The conclusion that the chance of harm in the reasonably foreseeable future was not sufficient to engage Australia’s protection obligations was, relevantly, based on the following findings of fact:
(a)although the applicant identified the Karuna group as his abductors and said that he was being taken to a navy base, thereby implicating the authorities, the applicant’s particular experience was not the subject of wide public discussion in parliament or the news, police and duty officers did not need to be changed and it did not cause problems for the Karuna group beyond the imprisonment of its members: at [17];
(b)the applicant heard the group planning to harm him while he was in prison, but this did not eventuate, and he was afraid after his release that there would be repercussions or further harm by the persons who had been imprisoned for his abduction: at [18];
(c)the applicant suffered no further threats or harm while he remained in Sri Lanka after his release from prison in 2007: at [18]-[19];
(d)the phone incident in 2009 was not connected with the Karuna group, there had not been any further repercussions from this incident and the chance of the applicant suffering any such harm in the future was remote: at [19];
(e)there was no evidence to suggest that the Sinhalese people who damaged the applicant’s family home in 2012 were connected to the Karuna group or Sri Lankan authorities, nor did this incident have any connection to his kidnapping, and that the chance of him experiencing harm because of this incident was remote: at [20];
(f)between 2008 and 2012, had the Karuna group or Sri Lankan authorities wanted to harm the applicant then they had ample opportunity to do so: at [22]; and
(g)there was no evidence of the applicant being a person of adverse interest to the Sri Lankan authorities because of his reporting of the 2007 incident or for any other reason in circumstances where his imprisonment was for his protection and ended at his request: at [24].
The Authority did not make any express finding about whether the applicant continued to hold a subjective fear that he would face harm in the reasonably foreseeable future, or the extent of any subjective fear. In the context of the applicant’s expressly articulated claims, it was not necessary for it to do so, because:
(a)The test for determining whether an applicant has a well-founded fear of persecution, which is relevant to any assessment of whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, involves a subjective and an objective element: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 179; [1989] HCA 62 (Chan) at [16], [21]; JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239 at [52]-[53]. Unless an applicant satisfies both the subjective and objective elements of the test, they do not have a ‘well-founded fear of persecution’. In the present case, the Authority found that the objective element of the test was not met. The Authority’s rejections of the objective element of the applicant’s claims to fear persecution meant that it was not necessary for the Authority to consider whether he had a subjective fear of persecution: see Rajadurai v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 118; [1999] FCA 125 at [19].
(b)The applicant’s subjective fears do not form part of the relevant statutory tests for the purpose of the complementary protection criterion: SZVVE v Minister for Immigration and Border Protection [2015] FCA 837 at [21].
As I understand the applicant’s arguments in relation to ground 1, he is not simply asserting that the Authority should have considered the applicant’s subjective fear as part of his express claims that he would face harm from the Karuna group or the Sri Lankan authorities in the reasonably foreseeable future as a result of the 2007 attempted abduction. Rather, he is asserting an unarticulated claim or integer based on the impact of living in chronic fear. The unarticulated claim or integer appears to be based on the ongoing psychological impact of past harm, rather than any anticipated future conduct by the Karuna group or the Sri Lankan authorities.
The applicant did not expressly claim that he would face harm upon return to Sri Lanka because of any psychological impact of his past harm and did not claim that his subjective fear of harm would itself amount to serious harm. Rather, the applicant claimed that he would be killed by the Karuna group, CID or the Sri Lankan Army because of his role in having members of the Karuna group arrested, and otherwise claimed to fear abduction, interrogation, being suspected of terrorism or other offences because of his ethnicity, or arbitrarily detained. The Authority considered the applicant’s claims as advanced. Nothing in the nature of the claims or the findings made by the Authority gave rise to any unarticulated claim that clearly emerged from the materials before the Authority as now submitted by the applicant.
In any event, the applicant has not identified any case law or other authorities that would support the proposition that a person’s subjective fear resulting from past harm could, without more, engage Australia’s protection obligations.
For the purposes of assessing an applicant’s claims under the refugee criterion, the assessment of the risk of the harm that an applicant may face contains a temporal element, namely the reasonably foreseeable future. The concepts of ‘persecution’ and ‘serious harm’ are based on actions against an applicant by another person, and not solely on the mental state of an applicant: see, for example, CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (CSV15) at [31]. The applicant’s ground does not identify any findings of the Authority regarding the anticipated future conduct of or actions that may be taken by the Karuna group or the Sri Lankan authorities against the applicant that give rise to his implied claim. Rather, the applicant relies solely on an event that occurred 10 years prior to the Authority decision, and his assertion that he still has a subjective fear as a result of that event.
The complementary protection criterion is also concerned with how a visa applicant may be treated by another person: see CVS15 at [34]; GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [37]; CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 at [65]-[67]. The applicant submitted that the most relevant limb of the definition of ‘significant harm’ in s 36(2A) that he relies on is that ‘the non-citizen will be subjected to cruel or inhuman treatment or punishment’ and acknowledged that this requires there to be intent on the part of the perpetrator. The applicant relies on the attempted abduction in 2007 and submitted that this is the event with the necessary intent. The applicant has not referred me to any authority to support either of the propositions that:
(a)the effect that the ongoing psychological impact on an applicant of an historic act of significant harm can of itself be the basis for a finding that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm’: s 36(2)(aa) of the Migration Act; or
(b)the definitions of ‘significant harm’ in s 36(2A), or more specifically, ‘cruel or inhuman treatment or punishment’ include the ongoing psychological effects of an historic act of significant harm.
It is appropriate in considering this ground to address two of the authorities cited by the parties in their submissions. The first is Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 (Prahastono), which the Minister cited as authority for the proposition that a strong subjective fear on the part of an asylum seeker does not convert non-persecution into persecution. The applicant submitted in response that the present case is distinguishable from Prahastono. Prahastono involved a situation where the Tribunal found that an applicant would face a real chance of discrimination, but that the discrimination was not significant enough to amount to persecution, and any subjective fear did not convert non-persecution to persecution. The applicant submitted that the present case was quite different, because in accepting the applicant’s claims in relation to his attempted abduction by the Karuna group in 2007, ‘the Authority accepted what must be one of the most spectacular claims raised in a protection claim’. As I understand the applicant’s submission, the main point of distinction that he seeks to identify between Prahastono and the present application is that the past harm accepted in this case is more serious than the past harm accepted in Prahastono.
In my view, the case of Prahastono supports the conclusion that I have reached in this case, particularly at [26(a)] above. The Court’s comments in Prahastono to the effect that fear on the part of an applicant does not turn non-persecution into persecution were made in the context of a finding to the effect that where the Tribunal had found that the conduct complained of did not, objectively, amount to persecution, it was not necessary to then consider the subjective fear of the applicant. The difference in the severity of the past harm accepted in Prahastono and the present case does not detract from the principle that the subjective fear of an applicant does not cause future action that might realistically be taken against the applicant to amount to persecution when it otherwise would not.
The second case addressed in the parties’ submissions is WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 (WAKZ), which the Minister cited as authority for the proposition that, by way of example, the prospective psychological impact of past persecution, such as the stress associated with non-persecutory monitoring and questioning on return to a country, does not elevate monitoring and questioning into persecutory conduct.
In WAKZ, the Tribunal had accepted that the applicant had previously been imprisoned in the receiving country and raped by authorities while in prison, but found that she did not have a well-founded fear of persecution in the reasonably foreseeable future. The applicant provided to the Tribunal a report from a psychologist expressing the view that the applicant was in a traumatised state as a result of her past rapes and return to the receiving country would have ‘deleterious effect on her wellbeing and mental health’. The applicant submitted to the Federal Court that the Tribunal erred in ignoring this evidence in relation to her mental health, and further submitted that the applicant’s traumatised state attributable to earlier persecution would mean that she would face a real chance of serious harm in her receiving country.
In rejecting the ground, French J made the following observations that are relevant to the application presently before the Court:
45.The concept of persecution necessarily involves action by government or government agencies or by third parties which government is unable or unwilling to control. The psychological impact upon the applicant of her return to Burma is a consequence of action which was persecutory in the relevant sense and which took place about 17 years ago. But the fear of that consequence, associated with her return to Burma, does not amount to a fear of a prospective persecutory action by government authorities or other actors in Burma. The stress, which it is said will be associated with the monitoring and questioning of the applicant upon her return to Burma, does not elevate the fact of monitoring and questioning into persecutory conduct.
…
49.In my opinion this ground cannot succeed because it does not point to any objectively based apprehended persecutory action on the part of the government or any other agencies. It relies upon the fragility of the applicant’s psychological state and the impact upon that mental state of non-persecutory questioning associated with her return.
The applicant submitted that WAKZ ought to be distinguished on the basis that French J was addressing an argument that there would be fresh persecution as distinct from past persecutory action, whereas the present applicant’s argument was that ‘if the applicant is returned to Sri Lanka and returned to living in a situation of chronic fear … this would be returning to a continuation of the past persecution’. The applicant further submitted that if I am against him on that point, he makes a formal submission that WAKZ was wrongly decided, in order to preserve his position in the event of any appeal.
I do not consider that the present matter is materially distinguishable from WAKZ. In both cases the applicant is relying on the psychological impact of past persecution to support a claim that they will face harm in the future, in the absence of any further conduct that would amount to persecution. The applicant has not identified any basis for finding that WAKZ is wrongly decided.
In the overall context of the present matter, nothing in the materials before the Authority gave rise to any unarticulated claim or integer based on the applicant’s subjective fear of harm which the Authority had found was not well-founded. The applicant did not articulate before the Authority his construction of the law that he now advances before the Court and no obligation arose requiring the Authority to consider the claims in this manner.
Ground 1 is not established.
GroundS 2 AND 3
Ground 2 of the applicant’s amended application reads:
The Authority fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
Particulars
b)The Authority erred in interpreting or applying the term “real chance” of persecution in section 5J(l)(b) of the Act and “real risk” of significant harm in section 36(2)(aa) of the Act, shown by its findings that:
(i)19 . ....He claims that in 2009 his phone was stolen from his locker and used to make threatening phone calls to people in Batticaloa, the base of the Karuna group. He states that the police suspected him but the case was dropped, and claims that the Karuna group were attempting to have him jailed. While I am willing to accept this phone incident occurred, I do not accept there was any connection with the Karuna group or that it was an attempt to have him jailed. This is pure speculation and I find it implausible that the Karuna group would employ such a convoluted and imprecise method if they wanted to harm the applicant...
(ii)20. The applicant also referred at the SHEV interview to an incident in 2012, prior to his departure, when Singhalese people damaged his house. .... he felt like this was targeting him because of an anger at him, there is nothing on the evidence to connect this incident to the Karuna group or Sri Lankan authorities. ..... I am willing to accept these events occurred but am not satisfied there was any connection between them and the earlier kidnapping of the applicant.
(iii)24. … I find it implausible that the CID would approach the applicant’s family in 2015, three years after his departure, despite having taken no action against him in the four years he remained in Sri Lanka. I find it similarly implausible that the Karuna group would attack the applicant’s son in 2016, a month prior to the interview, given the lack of any other contact with him or action against him since 2007.
(iv)25. Further, the applicant’s evidence regarding the interrogation of his wife by the CID was vague and contradictory, even considering he was describing events he did not personally experience.
(v)26. In addition, when asked during the SHEY interview what had happened since he had left Sri Lanka to make him believe he would be harmed if he returned, the applicant referred to the inquiries of his wife and CID visiting the house. He made no mention of the September 2016 incident in which he claimed that people had lured his 17 year old son outside, claiming to be the applicant’s friends, and then beaten him. It was only after a natural justice break later in the interview that the applicant raised that claim and presented a police report, saying that the attackers were the people he had informed on. The claimed incident was said to have occurred only a month prior to the SHEV interview. I do not accept that the applicant would have omitted to mention such a recent and significant event when specifically asked what made him believe he would be harmed when he returned, if it had actually occurred. Although the applicant has presented a complaint to the police which supports the claimed 2016 incident, this does not outweigh my concerns.
(vi)27. I am not satisfied the visits of the CID, questioning of the applicant’s wife and beating of his son occurred.
(CB 262-264, [17]-[27], emphasis added.)
…
33. … I accept the applicant implied that the navy had been involved in his abduction but do not accept that he has otherwise publicly accused the government of working with the Karuna group. Action was taken by the judiciary and police to protect him and, to a degree, to apprehend the abductors. Most significantly, as I have found above, the applicant suffered no repercussions as a result of his reporting of the incident, whether from the Karuna group, Sri Lankan government or security authorities or any other person. There is no evidence that the applicant has been imputed with opposition to the government….
34. … The fact that the applicant experienced no adverse attention from the Sri Lankan authorities, or the Karuna group, following the abduction incident in 2007 indicates that he was not imputed to be a supporter of the LTTE, whether on the basis of his having been targeted by the Karuna group, because he accused the government of complicity, or for any other reason. I am not satisfied that the applicant has ever been imputed with support for the LTTE, or that there is a real chance of him being so imputed in the future.
…
43. … DFAT advises that upon arrival in Sri Lanka, all involuntary returnees are processed by the Sri Lankan authorities for verification of their travel documents, identity and any outstanding criminal matters, which includes checks against immigration and intelligence databases. Police undertake an investigative process to confirm the identity of returnees travelling on temporary documents, which often involves an interview, contact with the police in the returnee's home area and their neighbours and family, and checking criminal and court records, ….
45. I have found above that the applicant is not a person of any interest to the Sri Lankan authorities, Karuna group or any other person. He has never been accused or suspected of involvement the LTTE ....
…
49. The submissions suggest that there is a real chance the applicant will be imprisoned. However, the applicant is not a person of any adverse interest to the authorities and on the above information I find that the applicant will be investigated at the airport, have his identity checked and be charged with an offence under the I&E Act, for which he will be fined. I accept it is possible that he will spend a period of time in custody at the airport, up to 24 hours. He may then potentially face a further period in a prison pending bail, although that is only in the event that he arrives on a weekend or public holiday or pleads not guilty to the illegal departure charge and is then required to wait for a family member to travel to Colombo rather than being released on his own personal surety.
50. As to the treatment the applicant may experience during custody and detention, although country information indicates that torture is routinely used in criminal investigations regardless of the nature of the offence, and that persons detained by the Sri Lankan authorities face a real risk of ill-treatment, the information before me does not refer to reports of torture or mistreatment in the course of investigating offences under the I&E Act, which is significant considering the large numbers of returned asylum seekers, including those who have departed illegally. Generally, DFAT has assessed that the risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the I&E Act, is low. I am not satisfied on the evidence that torture is routinely used in investigations or detention in respect of illegal departure offences and on my above findings, the applicant is not of adverse interest to the authorities. Considering the applicant's particular circumstances in light of the country information, I am not satisfied there is a real chance of the applicant being tortured or otherwise subjected to ill-treatment as part of the investigation or during any subsequent brief period of detention.
…
61. I have accepted that on return to Sri Lanka there is a real chance that the applicant will be investigated and detained at the airport, potentially detained for a number of days pending bail, and then imposed with a fine. I similarly find there is a real risk that he will experience such treatment. However, I find this does not amount to significant harm. As I have found above, the applicant is not a person of interest to the Sri Lankan authorities and on the information cited earlier, I do not accept there is a real risk that he will be mistreated during this period, or face a total period of detention of longer than a few days.
(CB 262-272, Decision [19]-[61], emphasis added)
c)Further or in the alternative to the matters set out in Particular (b) to this Ground, the Authority erred in interpreting or applying the term “real chance” of persecution in section 5J(l)(b) of the Act and “real risk” of significant harm in section 36(2)(aa) of the Act, shown by its findings that the Applicant did not have such a real chance or real risk of suffering such harm despite the matter before it relating to torture and other abuses of human rights in Sri Lanka, and shown by following findings by the Authority:
(i)30 ..... The material cited in the May 2017 response and other material in the delegate’s decision also seems to recognise some improvement in conditions. However, it is evident from that material, and I accept, that the government has been criticised for a lack of process, and particularly regarding its continued use of and failure to repeal the PTA, continued military presence and surveillance, and reports of ongoing instances of arbitrary arrest and detention, torture and mistreatment.
(ii)31. …. there nonetheless continue to be reports, although in lower numbers than was previously the case, of abductions, torture and use of excessive force against Tamils perceived to support the LTTE. As set out in the submissions to the IAA, there remain instances of torture of persons in police custody - described as ‘common practice’ - and there have been ongoing reports of arrests under the PTA, including of persons linked to the LTTE. However, the use of torture, enforced disappearance and abductions for ransom are said to have significantly reduced since the end of the conflict.
(iii)44. ... The November 2016 submissions, May 2017 response and delegate’s decision refer to various reports of returnees being detained and tortured either on return to the airport or afterwards on return to their home areas, including some following the election of the Sirisena government. However, the majority of these appear to have involved persons with past LTTE involvement or links. Putting these reports in context, thousands of asylum seekers have returned to Sri Lanka since 2009 including from Australia, the US, Canada, the UK and other European countries with relatively few allegations of torture or mistreatment, and DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low.
Ground 3 of the amended application reads:
The Authority fell into jurisdictional error in that it was unreasonable in making the decision.
Particulars
(a) The Tribunal noted reports of torture of persons in detention. It said:
“.... although country information indicates that torture is routinely used in criminal investigations regardless of the nature of the offence, and that persons detained by the Sri Lankan authorities face a real risk of ill-treatment, the information before me does not refer to reports of torture or mistreatment in the course of investigating offences under the I&E Act, which is significant considering the large numbers of returned asylum seekers, including those who have departed illegally. . I am not satisfied on the evidence that torture is routinely used in investigations or detention in respect of illegal departure offences and on my above findings, the applicant is not of adverse interest to the authorities. Considering the applicant’s particular circumstances in light of the country information, I am not satisfied there is a real chance of the applicant being tortured or otherwise subjected to ill-treatment as part of the investigation or during any subsequent brief period of detention.”
(Decision Record [50], Emphasis added.)
This conclusion was not reasonable in light of the material available to the Tribunal about the violence inflicted on people in custody in Sri Lanka, and in the course of assessing whether there was a real chance of persecution or significant harm.
(b)Further or in the alternative to the matters set out in particular (a) to this Ground and particulars (b) and (c) to Ground 2 of this application, the Authority was unreasonable in not finding that there was a real chance of the Applicant suffering persecution or a real risk of him suffering significant harm such as to meet the requirements of section 36(2)(a) or 36(2)(aa) of the Act.
At the hearing, counsel for both parties addressed grounds 2 and 3 of the amended application together as they were said to complement each other. Addressing the two grounds together, counsel for the applicant drew a distinction between the challenge to the ‘specific actual findings that were made by the Authority about the applicant’s claims and his particular situation’ which were the subject of ground 2 particular (b) and also ground 3 particular (b), and ‘the more general set of findings in relation to the risk of harm for somebody such as the applicant on return to Sri Lanka and while in detention’, which is the subject of ground 2 particular (c) and ground 3 particular (a).
I will likewise address the grounds in this manner.
Relevant principles
Before turning to the Authority’s findings, it is useful to set out the relevant principles to be taken into account when considering these grounds.
‘Real chance’ and ‘real risk’ tests
The applicant has not properly identified how he alleges the Authority misapplied the relevant statutory tests or misapplied the words ‘real chance’ and ‘real risk’, other than by a general assertion to the effect that the Authority should have found that the claims identified by the applicant established that he had a ‘real chance’ of serious harm or a ‘real risk’ of significant harm had it properly applied the test. The applicant also referred later in his written submissions to Chan.
The ‘real chance’ test in s 5J(1)(b) was explained in Chan, where the High Court said at [12]:
… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
It has been held that the ‘real risk’ test in s 36(2)(aa) imposes a similar standard: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [246], [297], [342].
There is nothing on the face of the Authority decision that indicates that it misinterpreted or misapplied these terms. The Authority in its decision made reference to the requirements in relation to the refugee criterion at [9]-[10] and ultimately found at [54]-[55] that the applicant did not meet the requirements in s 36(2)(a). The Authority also made reference to the requirements in relation to the complementary protection criterion at [56]-[57] and found at [66] that the applicant did not meet the requirements of s 36(2)(aa).
As I understand it, the applicant’s submission is to the effect that, if the Authority accepted there was some chance or risk of future harm, even if the likelihood of that harm eventuating was less than 50%, then it ought to have found that the applicant had a real chance of serious harm or a real risk of significant harm and its failure to do so demonstrates that it misunderstood or misapplied the statutory test. While Chan confirms that a ‘real chance’ can be less than 50%, when assessing the applicant’s grounds, it is also relevant to bear in mind that not every low chance of harm will be a real chance – in some cases, the chance of harm is remote and not real: see Re Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493; [1993] FCA 75 at [19]-[20]; BUY15 v Minister for Immigration and Border Protection [2017] FCA 22 at [36]-[38]. Further, the Authority was not required to uncritically accept the applicant’s claims and it did not require rebutting evidence to reject his claims of past harm: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 at [7].
Unreasonableness
In Vo v Minister for Home Affairs (2019) 269 FCR 566; [2019] FCAFC 108, the Full Court of the Federal Court summarised the following principles relevant to unreasonableness in fact finding at [43]:
Where a complaint is made that there has been jurisdictional error by the Tribunal by reason of a breach of the implied standard of reasonableness in decision-making and the complaint is concerned with factual findings then the following matters pertain:
(1)the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];
(2)where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]‑[47];
(3)unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]‑[5];
(4)it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant’s evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30];
(5)generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;
(6)the Tribunal is not required to refer to every piece of evidence placed before it: ETA067 v The Republic of Nauru [2018] HCA 46 at [13];
(7)in many instances, by reason of the nature of the Tribunal’s statutory obligation to give reasons, it may be inferred that a failure to refer to a particular matter reflects the Tribunal’s view that it was not material to its decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], [69] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] (although the positon may be different where there is a failure to consider a factual issue that is an essential integer of a claim or that would be dispositive: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] and ETA067 at [14]);
(8)mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];
(9)a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];
(10)a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others – the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and
(11)there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain [(2018) 264 CLR 123; [2018] HCA 34] at [25], [30]‑[31].
These principles are relevant to assessing ground 3 in the present case.
Consideration of Authority’s findings and reasons
I address each of the challenged findings in turn to explain why the findings were open to the Authority and do not represent any misunderstanding or misapplication of the ‘real chance’ or ‘real risk’ tests.
I first address the findings set out in ground 2 particular (b), which are also relevant to ground 3 particular (b).
(a)Particular (b)(i): Authority reasons at [19]: This relates to the Authority’s acceptance that the applicant’s phone was stolen from his locker in 2009 and used to make threatening phone calls to people in Batticaloa, but rejection of his assertion that the Karuna group were responsible and were trying to have him jailed. The applicant submitted that it was not reasonably open for the Authority to dismiss as implausible the applicant’s claim that the Karuna group was involved in the incident given its earlier findings that that the Karuna group had attempted to abduct the applicant. In my view, nothing in [19] of the Authority’s reasons is unreasonable or demonstrates any misapplication of the real chance or real risk tests. There was no evidence provided to support the applicant’s own belief that the Karuna group was involved and in those circumstances, it was open to a reasonable decision-maker to find the claim that the Karuna group was involved to be speculative. The Authority’s finding that it was implausible that the Karuna group would employ such a convoluted and imprecise method if they wanted to harm the applicant was also one which was open to a reasonable decision-maker acting rationally.
(b)Particular (b)(ii): Authority reasons at [20]: The Authority accepted that Sinhalese people damaged the applicant’s house in 2012 but noted that there was nothing on the evidence to connect this incident to the Karuna group or the Sri Lankan authorities. The Authority accepted that the events occurred but was not satisfied there was any connection between them and the earlier kidnapping of the applicant. The applicant submitted that it was not open to the Authority to dismiss the applicant’s suggestion that the 2012 incident was connected to the earlier kidnapping. I do not accept this submission. In the absence of any evidence to support the applicant’s feeling that he was being targeted by the Karuna group, it was open to the Authority to find that the damage to the applicant’s house in 2012 was unconnected with the Karuna group or the prior kidnapping incident.
(c)Particular (b)(iii): Authority reasons at [24]: The Authority considered that it was implausible that the CID would approach the applicant’s family in 2015 despite having taken no action against him while he remained in Sri Lanka. The Authority considered it implausible that the Karuna group would attack the applicant’s son in 2016 given that, on its findings, the Karuna group and Sri Lankan authorities had not shown any adverse attention to the applicant since 2007. The applicant submitted that there was no basis for the Authority to dismiss these claims as implausible. The applicant submitted that in circumstances where a real chance may be a small chance, it was outside of the area of decisional freedom to dismiss the new interest as implausible unless the Authority could also rule out the possibility that the CID might get new information or developed new suspicion, and there might logically be any reason for a police force in a country to take fresh action at a later time. The applicant’s issue appears to be with the finding of ‘implausibility’ and suggests that the Authority should have considered a spectrum of likelihood. In my view, the finding of implausibility was open to the Authority. Any assessment of the likelihood of an event occurring is to be assessed on the evidence before the Authority and not pure speculation. In light of the Authority’s reasons as a whole, and in particular its findings regarding the lack of adverse action taken against the applicant following the attempted kidnapping and his release from protective custody, it was open to the Authority to find it implausible that the authorities would suddenly approach the applicant’s family or harm the applicant’s son in relation to an incident that happened seven to eight years earlier. The suggestion that further information may have come to light is purely speculative.
(d)Particular (b)(iv): Authority reasons at [25]: The Authority considered that the applicant’s evidence regarding the claimed interrogation of his wife by the CID was vague and contradictory, even taking into account that he was describing events he did not personally experience. The applicant submitted that it is considerably more difficult for the Authority to reasonably reject the claim when on its face it was made on the basis of what the applicant was told, rather than his own experiences. There is no unreasonableness in the Authority’s finding. The Authority was clearly cognisant that the applicant did not personally experience the event and took that into account when assessing his evidence. Notwithstanding the allowances it made by reason of the applicant not experiencing the event firsthand, the Authority still considered the applicant’s evidence to be vague and contradictory. That finding was open to it.
(e)Particular (b)(v): Authority reasons at [26]: The Authority expressed concerns about the applicant’s claim that his son had recently been beaten in Sri Lanka. The Authority noted that the applicant was asked at the protection visa interview what had happened since he left Sri Lanka to make him believe he would be harmed if returned. The applicant referred to inquiries of his wife and the CID visiting the house but did not mention the very recent incident in which he claimed that people had beaten his 17 year old son. Rather, the applicant only raised this claim after the natural justice break. The Authority did not accept that the applicant would have omitted to mention such a recent and significant event when it specifically asked what made him believe he would be harmed on return if the event had actually occurred. This reasoning process is logical and rational and does not disclose error.
(f)Particular (b)(vi): Authority reasons at [27], [33], [34], [43], [45], [49], [50], [61]: The applicant has grouped together a number of different findings of the Authority in this subparagraph of his application. There is nothing in the applicant’s written submissions that gives any meaningful indication whatsoever of how these paragraphs are said to give rise to either of the jurisdictional errors claimed. I have attempted to understand this aspect of the applicant’s case based on his counsel’s oral submissions at the hearing. In those submissions, counsel addressed [27] together with [26], and in the context of [25]. I have already addressed the reasoning in [25] and [26] above, and [27] is simply a conclusion based on the reasoning at [25] and [26] that the Authority was not satisfied that the claimed CID visit, the questioning of the applicant’s wife or the beating of his son occurred. For reasons I have already given in relation to [25] and [26], the conclusion at [27] was open to the Authority. Counsel then made the following submission about the remaining paragraphs:
At paragraph 33, the Authority accepts – notes it’s accepted that the applicant implied that the navy had been involved in his abduction, and – and says at [34]:
The fact the applicant experienced no adverse attention from the Sri Lankan authorities following the abduction in 2007 indicates that he was not imputed to be a supporter of the LTTE.
Now, that “was not” finding is properly past tense, your Honour, but for the Authority, especially given the claim of the CID coming around in 2015, and the claim relating to the assault on the son, in my submission, there’s no legally reasonable basis for the finding of the Authority that it’s not satisfied the applicant has ever been imputed with support for the LTTE or that there’s a real chance of him been so imputed in the future. In effect, in my submission, the Authority has closed its mind to the possibility that there could be fresh information and fresh attention to the applicant, even though it was prepared to accept that there had been this spectacular event in his life so far. That’s important, your Honour, because of the finding at paragraph 43 about the investigations made…… an applicant returns. So I accept that at paragraph 45 the Authority considers what may flow from those investigations on return, paragraphs 44 and 45 taken together, but in my submission, the finding – the conclusion to which the Authority comes that – about halfway through paragraph 45….:
I find that in the course of any routine investigation upon return, the authorities will quickly establish that the applicant has no relevant adverse profile, and that there’s not a real chance of him been harmed in that process.
Now, your Honour, that finding, in my submission, is unreasonable because it rests upon two foundations, but neither of them is logically probative. So the first is the Authority’s rejection of the later attention to the applicant in 2015, and then after that, and the other is its view that it takes of the country information about the treatment of people on return.
As I understand the submission, the assertion is that the conclusions reached by the Authority to the effect that the applicant would not be imputed as a LTTE supporter and harmed on that basis if he returns to Sri Lanka were not open to the Authority based on its rejection that the CID visited his family, questioned his wife and that his son was beaten, and based on its consideration of the country information about the risk of torture. I have found above that the rejection of the claim regarding visits from the CID, the questioning of his wife and the beating of his son was reasonably open to the Authority. I find below that the Authority’s findings in relation to the potential risks to the applicant while in detention upon return to Sri Lanka were open to it on the country information before it. Those two findings appear to otherwise dispose of the applicant’s complaints about the paragraphs of the Authority’s reasons identified at particular (b)(vi).
The balance of the issues raised in grounds 2 and 3 relate to the findings the Authority made about the risk of harm the applicant would face on return to Sri Lanka as a person who has breached the Immigrants and Emigrants Act and who, on the Authority’s findings, may be detained for a brief period upon his return. The applicant highlights a number of country information articles about torture and breaches of human rights in Sri Lanka. The applicant drew the Court’s attention to submissions and country information in the court book, including references to information prepared by the United Nations Human Rights Council, the United States Department of State, Amnesty International, the United Nations High Commissioner for Refugees, International Truth and Justice Project Sri Lanka.
The applicant referred to the Authority’s finding that he would be subject to a period of investigation upon his return and that he might be imprisoned for a period of several days at most. The applicant submitted that the question for the Authority was not whether torture was routinely used by police, or whether it was routinely used by police in investigations of people on return for offences under the Immigrants and Emigrants Act, but whether there was a real chance that that might occur. The applicant submitted that given the breadth and depth of the material before the Authority addressing the prevalence of torture and human rights abuses, it was not reasonably open to the Authority to come to the conclusion that it did at [50], where it said (emphasis added, footnotes omitted):
As to the treatment the applicant may experience during custody and detention, although country information indicates that torture is routinely used in criminal investigations regardless of the nature of the offence, and that persons detained by the Sri Lankan authorities face a real risk of ill-treatment, the information before me does not refer to reports of torture or mistreatment in the course of investigating offences under the I&E Act, which is significant considering the large numbers of returned asylum seekers, including those who have departed illegally. Generally, DFAT has assessed that the risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the I&E Act, is low. I am not satisfied on the evidence that torture is routinely used in investigations or detention in respect of illegal departure offences and on my above findings, the applicant is not of adverse interest to the authorities. Considering the applicant’s particular circumstances in light of the country information, I am not satisfied there is a real chance of the applicant being tortured or otherwise subjected to ill-treatment as part of the investigation or during any subsequent brief period of detention.
I accept the Minister’s submission that the Authority clearly had regard to the submissions of the applicant which addressed the relevant country information but ultimately preferred the information in the 2017 Department of Foreign Affairs and Trade (DFAT) report on Sri Lanka. Having reviewed the Authority decision as a whole, including those passages cited in ground 2 particular (c), I am satisfied that the Authority addressed the country information before it, including that which assisted the applicant’s arguments, in a careful and balanced manner.
I further accept the Minister’s submission that the assessment of country information is a factual matter for the Authority to consider as the sole arbiter of the facts. It is well-established that the choice of and weight that is given to country information is a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The fact that the Authority relies on one piece of country information that expresses a different view to another piece of country information does not, of itself, give rise to jurisdictional error.
The applicant has set out his written submissions a number of passages of the DFAT report and suggested that the Authority’s reliance on the DFAT report was incomplete and the Authority failed to recognise the limitations of the report. Some of the specific paragraphs of the DFAT report cited by the Authority expressly refer to the limitations on the report. For example, the Authority cited [4.21]-[4.22] of the DFAT report for the proposition that generally, DFAT assessed that the risk of torture or mistreatment for the majority of returnees as low, including for those who are suspected of breaching the Immigrants and Emigrants Act. These paragraphs read:
4.21DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
4.22Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.
Given the careful and detailed way in which the Authority considered the country information before it, and its express reference to limitations in the DFAT report in the passages of that report cited by the applicant, I infer that the Authority took into account all of the relevant parts of the DFAT report in reaching its views in relation to the possibility of the applicant facing torture upon return to Sri Lanka, and was cognisant of the limitations of the DFAT report.
Further, as the Minister identified in his written submissions, in coming to the conclusion at [50], the Authority relied on its finding that the applicant was not a person of adverse interest to the Sri Lankan authorities, and considered the applicant’s particular circumstances in light of the country information. In other words, the Authority was satisfied that there was nothing particular to the applicant that would in any way give rise to a real chance of serious harm, or a real risk of significant harm while detained.
This is important the context of the submission advanced by the applicant that a ‘low’ chance of harm can still be a real chance. Essentially, the Authority has relied on DFAT’s assessment that the risk of torture or mistreatment for the majority of returnees is low, and found that, when that low risk is considered together with its finding that the applicant did not have any sort of profile that would make him of adverse interests to the Sri Lankan authorities, the chance of him suffering serious or significant harm was sufficiently low that it would not amount to a real chance or a real risk.
The Authority’s findings in relation to the risk of harm the applicant will face upon his return to Sri Lanka, including in the few days that he may be detained while waiting to appear before a magistrate for breaching the Immigrants and Emigrants Act, were reasonably open to it on the evidence before it. The Authority has provided an evident and intelligible justification for its findings, and its decision cannot be said to be unreasonable: see, for example Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10], [82].
There is nothing in the reasons which leads to the conclusion that the Authority misapplied the statutory tests in ss 36(2)(a) or 36(2)(aa) of the Migration Act.
Grounds 2 and 3 do not establish jurisdictional error.
Conclusion
In circumstances where I have found that the applicant has not established jurisdictional error in the Authority decision, the application for judicial review must be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 November 2022
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