DLV17 v Minister for Immigration

[2018] FCCA 2563

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2563

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision was illogical, irrational and unreasonable – whether the Authority failed to consider the applicant’s claims cumulatively – no jurisdictional error identified – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss. 5H, 36, 473CB, 473CC, 473DB, 476.

Applicant: DLV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2445 of 2017

Judgment of: Judge Street

Hearing date: 11 September 2018

Date of Last Submission: 11 September 2018

Delivered at: Sydney

Delivered on: 11 September 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Rasan T. Selliah

Solicitors for the Respondents: Mr L Dennis
MinterEllison

ORDERS

1. Grant leave to the applicant to rely upon the amended application dated 4 September 2018 and the Court dispenses with the need for the electronic filing of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2445 of 2017

DLV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, made on 3 July 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 19 October 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil Christian from the Northern Province of Sri Lanka and claimed to fear harm because of an imputed political opinion in support for the Liberation Tigers of Tamil Eelam (“LTTE”), having a familial association with members of the LTTE, being a Tamil and being a returned asylum seeker who fled Sri Lanka illegally.  The applicant also claimed to fear harm because he was intercepted by authorities on his first attempt to leave Sri Lanka and that he was remanded in prison for a week. On 3 November 2016, the delegate found the applicant failed to meet the criteria for the grant of the safe haven enterprise visa. 

3. On 10 November 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter gave the applicant an opportunity to put on new information and submissions. The applicant did put on submissions dated 22 June 2017, as well as 30 November 2016 erroneously dated 2011.

4. The Authority in its reasons, identified the background to the review and had regard to the material referred under s 473CB of the Act. The Authority expressly referred to the submissions provided on behalf of the applicant to the Authority, dated 30 November 2016, and to the extent that it contained new information, found there were exceptional circumstances to consider the same and had regard to those submissions. 

5. The Authority also referred to inviting the applicant to respond or comment on information provided under cover of a letter dated 8 June 2017 and referred to the applicant’s submissions provided on 22 June 2017. Relevantly, in relation to the material referred to, the Authority expressly referred to the justification for considering what was identified as being the new information in those submissions, consistent with the Authority taking the same into account. 

6. The Authority summarised the applicant’s claims and relevantly referred to his family being taken into a Displaced Persons camp in 2009 and the applicant being taken to the Criminal Investigation Division and questioned about his association with the Liberation Tigers of Tamil Eelam (“LTTE”), and that in 2010, his family were released and returned to their home village, and that the applicant resumed welding work and that when the employer fled, the applicant’s brother took over the company and gave the applicant work.

7. The applicant alleged in August 2012, people came to his house while he was at work. The applicant alleged they asked his mother where he was and the address of the workplace, but the applicant’s mother did not give the same. The applicant alleged his mother called him and he did not go home but stayed in a room in the back of the workshop for two weeks. The applicant alleged after two weeks no one came looking for him and he went home and met some friends to play cricket, and while they were playing, two plains clothes men came up then took him to a police station. The applicant alleged they said that his welding course had been paid for by the LTTE and he worked for the LTTE. The applicant responded that he told them the course was arranged by the church. The applicant alleged he was slapped and assaulted. The applicant alleged later his mother and a priest came to the police station. The priest told them that the church had arranged the course and the applicant was released.

8. The applicant alleged the priest told him he needed to get away because he would not be safe, and he went into hiding and then went to Jaffna to get a boat. The applicant alleged the boat was stopped by the Sri Lankan Navy and he was taken to court. The applicant alleged he was remanded in prison over the weekend before his mother and aunt bailed him out.  The applicant alleged he then arranged for another boat and escaped Sri Lanka on 30 September 2012. The applicant also alleges his mother has sent him a letter from the Criminal Investigation Division, dated 12 July 2015, instructing him to appear at the Criminal Investigation Division office in Colombo on 17 July 2015.

9. The Authority identified the relevant law. The Authority referred to the applicant’s claims of familial association with the LTTE and identified that at the interview with the delegate, it was raised with the applicant the failure to mention at any time, that either his father or stepfather are involved with the LTTE. The Authority referred to the applicant’s explanation but did not accept that applied in circumstances where the interview took place three months after the applicant had arrived in Australia. The Authority did not accept that if the applicant was subject to interrogation and mistreatment for the reasons claimed in respect of his father and stepfather, he would not consider it relevant to his personal claims when he made the statements at the entry interview.

10. In light of the failure to mention the father and stepfather, the Authority did not accept the applicant’s explanation for why he did not mention the familial association with the LTTE. The Authority noted that the applicant has not claimed and there is no evidence to suggest that his mother or his siblings have ever been questioned, harassed, harmed or had any form of contact with any police, military, security or paramilitary organisation in relation to the father or the stepfather. The Authority was not satisfied the applicant has provided a credible account for the development of this familial association claim. The Authority did not accept the applicant’s biological father or stepfather was involved with the LTTE, as the applicant claims. The Authority was prepared to accept that the stepfather may be missing, but did not accept that this meant the applicant being imputed with any association with the LTTE. The Authority found the applicant had embellished or fabricated these claims in order to strengthen his refugee application. 

11. The Authority referred to the applicant’s interrogation claims whilst at the Displaced Persons camp in 2009. The Authority referred to the applicant being released with his family in 2010 and being allowed to return to their village. The Authority referred to the applicant being questioned by the delegate why the Criminal Investigation Division would let him go if he was suspected of being LTTE, and the applicant responded that they could not confirm the LTTE status in the camps and that it was easier to send him back and confirm it there. The applicant identified having returned to his village and continued working as a welder. The applicant, in that regard claimed the authorities did not come looking for him until 21 months later. The Authority referred to what occurred during the camps and found that what the applicant had alleged in relation to interrogation was plausible.

12. The Authority accepted the applicant was called in for interrogation a number of times and suffered violence and injury on those occasions.  The Authority identified that the applicant was pressured to identify persons who may have been linked to the LTTE. The Authority took into account that persons who were suspected of any involvement or association with the LTTE, including those with only a civilian or familial association, were separated from their families and taken to detention centres and on that basis, the Authority did not accept that the applicant was questioned about his stepfather or that his family was perceived as being an LTTE family.

13. The delegate in the delegate’s reasons also identified the fact that the applicant was not identified as being associated with the LTTE and the fact that the applicant was released without being taken to a rehabilitation camp indicates that the authorities were satisfied the applicant was not involved with the LTTE, that they were not interested in the applicant, and that the applicant did not face any problems for 21 months after his release and that would indicate the authorities were not interested in him. The delegate referred to the applicant stating he continued to work for the same business after he was released from the camp and did not have problems, and the business is still being continued and that this would indicate that the authorities were not interested in the applicant for working in the welding company in the LTTE-controlled area, which undertook jobs for the LTTE before the war.

14. The submissions provided by the applicant to the Authority, including the report of the Human Rights Commission to the Committee Against Torture of October 2016, expressly refers to detainees and the rehabilitation process and transferring persons to detention centres and prisons, and the process for rehabilitation, and the steps taken in relation to those in remand. This includes whether they are willing to go to rehabilitation and upon signing consent letters are sent to rehabilitation. Further, the duration of the rehabilitation was identified as a matter for the Secretary, Ministry of Defence according to the Report.

15. The Authority referred to country information indicating that detainees of more than general interest to the authorities were required to report daily to the security offices, while others simply disappeared from the camps, usually at night. The Authority also referred to restrictions on detainees’ movements and the process being highly regulated, and that some families are allowed to leave after paying bribes. The Authority referred to the applicant’s claim that he and his family had remained together in the same Displaced Persons camps and were all released to return home at the same time.

16. The Authority noted the applicant had not claimed that he was required to report on a daily or other regular basis or that the family paid bribes in order to leave the Displaced Persons camp. The Authority noted the authorities did not visit the applicant’s house or workplace from December 2010 until August 2012 and that the applicant was not in that period, subject to reporting, monitoring or harassment. The Authority referred to the delegate raising with the applicant that this was a time when authorities were actively targeting and arresting LTTE suspects and sending them for rehabilitation however, nothing happened to the applicant which suggested that he was not of interest to the authorities at all. The Authority referred to the applicant’s concerns that he was not cleared and beyond suspicion because he was released from the Displaced Persons camp. The Authority found it implausible that if the Criminal Investigation Division had any level of ongoing suspicion of the applicant, it would have allowed the applicant to remain with his family in the Displaced Persons camp and then later leave the Displaced Persons camp without further investigation or follow-up. 

17. The Authority referred to country information indicating that, even if the authorities did not have firm evidence against someone, anyone with suspected link to the LTTE or similar profile was separated, taken to a detention camp, or simply disappeared. It was in those circumstances, the Authority was satisfied that if the authorities had any interest in the applicant whatsoever, he would have been subject to some form of surveillance, reporting or other contact with the authorities when he returned to his home village.  The Authority did not accept the applicant’s claims that the Criminal Investigation Division released him because it had no firm evidence against him or for tactical reasons, or that the Criminal Investigation Division continued to suspect him after his release. 

18. The Authority found that whilst it is plausible that a person’s release does not mean they were cleared beyond suspicion, the Authority found there was no evidence that indicated that the applicant was subject to any suspicion at the time of his release or in the 21 months following the same. It was in those circumstances, that the Authority found it was not satisfied the applicant was of any ongoing interest to the Criminal Investigation Division when he left the Displaced Persons camp. The Authority found the applicant was not at that time, imputed with any support for or association with the LTTE.

19. The Authority referred to the incident claimed by the applicant that occurred in August 2012.  That incident was described in paragraphs 14 to 18 of the applicant’s statement dated 1 March 2016 and was summarised in the Authority’s reasons. In paragraph 18 of that statement, the applicant indicated that:

    around about 9 pm, I was released after the intervention of my priest. My priest explained that his church were the ones who paid for my welding education. The officials warned me to report whenever required and not to leave his area of residence without their permissions. My priest privately advised me to leave, at least to India, because the authorities would never cease and this harassment could escalate to serious harm.

20. The applicant’s statement asserts the officials warned him to report whenever required and not to leave his area of residence without their permission.

21. The applicant then noted his priest advised him to leave, at least to India, because the authorities would never cease and this harassment could escalate to serious harm. 

22. The applicant’s representative also summarised, in the submissions dated 6 September 2016, the alleged incident that occurred in August of 2012 and again referred to the officials warning the applicant to report to them whenever required and not to leave the area

23. The Authority referred to the applicant’s claim that the Criminal Investigation Division released the applicant but told him that he had to stay in the village and report whenever called for. The Authority found there were aspects of the claim in relation to August 2012 that were unconvincing. The Authority did not accept that the authorities were actively seeking the applicant or that they came and took him from a cricket game. The Authority was however prepared to accept that the applicant was called in for questioning by the authorities on one occasion and that this questioning was in relation to his welding course.

24. The Authority found that the applicant’s local priest provided documentary proof that the LTTE did not arrange the welding course and the applicant was then released. The Authority noted that the applicant did not claim that the Criminal Investigation Division or any other military, paramilitary or security organisation has attempted to locate him, visit his home or call him for further questioning or show any interest in him in relation to purported LTTE links since that time, including since he has been in Australia, apart from the purported letter from the Criminal Investigation Division. The Authority was satisfied that whatever interest the authorities may have had in relation to the applicant’s welding course and education ceased in or around 2012.

25. The Authority referred to the applicant’s claim concerning his former employer having LTTE links and that the former employer’s brother took over the business. The Authority noted the applicant does not claim and there was no evidence that he has ever been questioned in relation to this employer or the employer’s links to the LTTE. The Authority noted the applicant has not claimed that the employer’s brother has ever been questioned or that the authorities have ever attended the business premises, asked questions of other employees or conducted any other form of investigation into the business’ links to the LTTE. The Authority found that, while it was prepared to accept the applicant, may believe his former employer was involved with the LTTE and fled Sri Lanka as a result, the Authority found the applicant’s claim that he may be imputed with an LTTE profile because of his association with his employer to be speculative and not well founded. The Authority found there was no evidence to indicate that the applicant himself has any adverse profile arising from his association with his employer.

26. The Authority referred to the applicant’s claim that he was intercepted by the authorities on the first attempted departure from Sri Lanka in September 2012 and that when his mother and aunt came to court, he was bailed on the surety of his aunt. The Authority noted there was no evidence that the applicant was required to report to police stations, reside in particular areas or subject to any movement restrictions. The Authority noted that apart from the letter, allegedly from the Criminal Investigation Division, the applicant has not claimed the authorities have made any enquiries or tried to locate him in more than four years since the incident.

27. The Authority referred to the claim that on 12 July 2015, the applicant’s mother was sent a letter from the Criminal Investigation Division instructing the applicant to appear on 17 July 2015. The Authority identified that the delegate had referred to significant anomalies in the document. The Authority referred to the letter not indicating a reason or case details and identified sharing the concerns of the delegate. Nonetheless, the Authority, was prepared to accept that the applicant departed Sri Lanka whilst on bail for his previous attempt to depart Sri Lanka. The Authority accepted that the applicant has an extant legal matter relating to this attempt and was prepared to accept that he may have been called in to the authorities for that reason.

28. The Authority found the applicant did not have any adverse security profile relating to his own, his family’s or his employer’s real or imputed links to the LTTE. The Authority took into account country information and was prepared to accept that the applicant was detained over the weekend in relation to his previous attempt to depart. The Authority was satisfied that, if the applicant was of the level of interest to the authorities that he claimed, he would have been identified and held in custody for further investigation.  It was in those circumstances, that the Authority was satisfied that the applicant would not have been released as claimed. The Authority found it was satisfied that the applicant’s release and the fact that the authorities did not make any further contact with him or his family for at least three years indicates that the authorities were only interested in the illegal departure issue and have no ongoing interest in the applicant whatsoever. 

1. The Authority referred to the applicant’s claim of being a young Tamil male and expressly referred to having considered the applicant’s response to the Authority and the information referred to therein. That information relevantly included material relating to abduction, torture and sexual violence. The Authority also referred to taking into account country information that indicates the situation in Sri Lanka has changed since the applicant left. The Authority referred to the 2017 DFAT Country Information Report. The Authority referred to the applicant’s response to the 2017 DFAT Country Information Report, submitting that the improved country situation only relates to Tamils in general and not Tamils with an LTTE profile. The Authority further referred to the applicant’s response, referring to other information relating to risks faced by persons with a relevant profile. The Authority found the applicant did not have any familial association to the LTTE and that while the authorities may have had some interest in him at one time, any such interest ceased in 2012. The Authority found there was no information or evidence that indicated the applicant has been or will be involved in any activities that might be, or be perceived to be, linked to the re-emergence of the LTTE.

2. The Authority found there was no information or evidence that indicates the applicant is subject to any adverse intelligence maintained by the Sri Lankan authorities. The Authority was satisfied that the applicant would not face a real chance of being interrogated, detained, arrested or subject to any other action in relation to an adverse security profile and/or under the Prevention of Terrorism Act (“the PTA”).  The Authority was satisfied that based on the applicant’s evidence and the country information, that the applicant will not be attributed with any profile other than being a young Tamil male from the north. The Authority was satisfied the applicant would not face a real chance of serious harm on the basis of being a young Tamil male or a Tamil male from the North.   The Authority was satisfied the applicant does not face a real chance of serious harm on the basis of being a Christian. 

3. The Authority expressly referred to considering all of the claims and information and found the applicant will not be imputed with any support for or association to the LTTE arising out of his family, employer, education, his first attempt to depart Sri Lanka, his second attempt to depart Sri Lanka or any other reason or association. The Authority found the applicant is of no interest to the authorities for any reason relating to the LTTE and that he will not face a real chance of serious harm for this reason he should be returned to Sri Lanka. The Authority found the applicant does not face a real chance of serious harm on the basis of being a young Tamil male, a Tamil from the North or a Christian. 

4. The Authority referred to the applicant’s illegal departure and being a returned asylum seeker. The Authority noted that the applicant has not claimed that he, his family or his aunt have been contacted by the authorities in relation to his subsequent departure or his failure to attend in 2015. The Authority referred to having considered all of this information and evidence and, taking into account the findings as to a lack of any imputed LTTE profile, the Authority was not satisfied that the applicant’s previous attempt to depart Sri Lanka would give him an adverse profile with the authorities. 

5. The Authority was satisfied that first illegal departure offence is a minor offence and would not give rise to anything more than low level interest. The Authority was satisfied that leaving Sri Lanka whilst on bail for this offence would not give rise to any more than low level interest and that his repeat offence would not give rise to an adverse security or criminal profile. The Authority found there was no evidence that indicates the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart. The Authority was satisfied the applicant would not be at risk on return on the basis of any adverse security or criminal profile, including having departed whilst on bail for his previous attempt, and found that notwithstanding the applicant’s personal profile, there is not a real chance that he would be subject to harm because he is a returning asylum seeker.

6. The Authority accepted that the applicant’s previous attempt to depart Sri Lanka and bail status may become known. The Authority found there was no indication that indicates that persons have breached immigration-related bail are refused further bail, although the Authority accepted the Court may impose more stringent bail conditions. The Authority also took into account the applicant’s aunt provided surety for him before and that the applicant had not claimed he would not be able to access a guarantor again, should it be required. It was in those circumstances that the Authority then again referred to having regard to all of these circumstances and was not satisfied that the imposition of more stringent bail conditions, if imposed at all, would be conduct that amounts to serious harm.  The authority further referred to having considered that, although the applicant has attempted to depart Sri Lanka once before, he has not been convicted in relation to that offence.  The authority was satisfied that, if convicted, the applicant is likely to receive a fine rather than a custodial sentence. The Authority found the fine imposed or the requirement for bail a surety or guarantee would not constitute serious harm.

7. The Authority was satisfied the applicant would not be given a custodial sentence. The Authority took into account expressly that the applicant was on remand for two days in 2012 and has not claimed that he was beaten or subject to other mistreatment during that period.  It was in all those circumstances, that the Authority found that any questioning and detention of the applicant that the applicant may experience would be relatively brief and would not constitute serious harm within the definition in the Migration Act, that the Authority recognised was non-exhaustive.

8. The Authority was satisfied that the provisions and penalties of the Immigrants and Emigrant Act are laws of general application. The Authority was satisfied that, to the extent the applicant may be fined, detained or questioned under that Immigrants and Emigrant Act, this would not constitute serious harm and would be the exercise of laws of general application that apply to all Sri Lankans. The Authority referred to the fact that, overall, the Authority was not satisfied the applicant will face a real chance of serious harm on the basis of any real or imputed association with the LTTE, being a young Tamil male from the North, being a Christian, having left Sri Lanka while on bail for a previous attempt to depart and being a returned asylum seeker who departed Sri Lanka illegally.

9. The Authority referred to having considered the applicant’s claims cumulatively and found the applicant does not have any adverse security or criminal profile with the authorities and was satisfied that, when the applicant’s claims are considered cumulatively, together with his previous attempted illegal departure and bail status, the applicant does not face a real chance of serious harm. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act. 

10. The Authority in relation to complementary protection, referred to the Authority’s earlier findings and found the applicant does not face a real risk of significant harm for any of the reasons identified. The Authority expressly referred to the finding that the applicant would not receive a custodial sentence. The Authority referred in summary that having regard to the circumstances and profile of the applicant, that it did not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds of the amended application are as follows:

   Ground One

   The second respondent fell into jurisdictional error as there is (a) no evidence (b) misapprehension of evidence (c) lack of evidence to satisfy an essential statutory element.

   Also the second respondent fell into jurisdictional error by forming a decision that is illogical, irrational and unreasonable.

   Particulars:

   i) At paragraph 21, the Immigration Assessment Authority (IAA) rejected the applicant's claim regarding imputed political opinion because he was not separated and taken into detention centres. Reviewer arrived to this decision because the information that "I take into account that persons who were suspected of any involvement or association with the LTTE, including those with only civilian or familial association, were separated from their families and taken to detention centres.. ". There is no evidence that " .... those with only civilian or familial association were separated from their families and taken to detention".

   ii) At paragraph 41 the IAA concluded that leaving Sri Lanka second time while on the bail would not give rise to any more than low-level interest and that his repeat offence would not give rise to an adverse security or criminal profile. "The country information before me indicates that returned asylum seekers and those with an otherwise low profile are not generally at risk of harm on return to Sri Lanka (footnote 7). There is no evidence before me that indicates that the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart".

   iii) The IAA at paragraph 44 concluded that the applicant's aunt provided surety for him before and he has not claimed that he would not be able to access as a guarantor again should it be requires. Having regards to all of these circumstances, I am not satisfied that the imposition of more stringent bail conditions, if imposed at all, would be conduct that amount to serious harm.

   Ground Three

   1. The second respondent (the IAA) failed to conduct its review pursuant to s. 473CC of the Migration Act, according to law.

   Particulars

   (a) Failure to consider information that was before it, pursuant to s. 473DB of the Migration Act and, Failure to consider submissions advanced on behalf of the applicant to the effect that;

   I. The migration agent's submissions that there was ongoing targeting of people with actual or perceived links to the LTTE. (together with other reasons CB 166 p 26) with those targeted at risk of harm, including torture. That more than 50 Tamils returning from here with a real or perceived past connection to the LTTE even at very low levels, were tortured (also CB 145). According to some reports young Tamil men particularly those originating from the north and east of the country,  may be disproportionally affected by the implementation of security and anti-terrorism measures on account of their suspected affiliation with the LTTE (CB 161 ). Country information on prison conditions (CB 166 p26)

   II. The migration agent's submission that the applicant was not employed by the LTTE but his employer would take contracts with the LTTE and the applicant inevitably worked on LTTE projects. (CB 135). And he fears that his circumstances will lead the Sri Lankan authorities to suspect him of having LTTE links (CBl37). That he will be imputed with a pro LTTE or anti-government profile (CB 139-141 pa 40-51).

   111. Information at CB 136 para 19 stating that the officials warned the applicant to report to them whenever required and to not leave the area.

   IV. Submission that by illegally departing Sri Lanka twice, with the second time being whilst the applicant was on bail for the first office, the applicant is guaranteed to go to jail, where he will be subjected to degrading and inhumane treatment and torture.

   V. Information at CB 143 that detailed the arrest of two Tamils on return to Sri Lanka who were briefly been in the LTTE. They have often visited their families from time to time without any problems in the past (c/f last sentence of paragraph 21 of the IAA decision).

   VI. That abduction, torture and sexual violence of mainly Tamils by the security forces continued after the Sirisena government was elected in 2015, with the perpetrators making no effort to hide their identities.

   VII. The delegate's finding. based on a UNHCR report, that despite improvements in the overall security situation, security forces have continued to engage in human rights abuses, including arbitrary detention, enforced disappearances, torture and murder.

   VIII. The country information submitted by the migration agent in relation to illegal departure, particularly paragraph 19 of CB 164.

   (b) The second respondent failed to consider the applicant's claims cumulatively, despite its statement that it did so at CB 285 (491 pursuant to 32(2)(a) and 32(2)(aa) of the Migration act 1958.

Ground 3

1. Mr Zipser of counsel on behalf of the applicant, consistent with the advocacy advice of the learned Dowsett J, sought to address what was the best argument first and took the Court to ground 3. In relation to ground 3, Mr Zipser categorised the particulars into three different groups and addressed first the particulars in paragraph (a)(iv) and (viii) in support of an argument that the Authority had failed to conduct the review required under s 473CC of the Act and that there had been a failure to give genuine and real consideration to the subject matter identified in paragraph (a)(iv) and (viii).

2. Mr Zipser took the Court to the submissions that have been advanced in that regard, including the submission at paragraph 19 of page 164 of the Court Book and also to the substance of the DFAT Country Information Report – Sri Lanka 24 January 2017 which was referred to in the applicant’s written submissions dated 22 June 2017, concerning some returnees from Australia who have been charged with immigration offences and the criminal offences allegedly committed before departure. Subject to relevance, a DFAT Country Information report dated 23 May 2018 was tendered into evidence over the objection of the first respondent. The DFAT Country Information Report dated 23 May 2018 marked “Exhibit B” included paragraphs 5.33 to 5.35 and this was relied upon by Mr Zipser in support of the argument that there had been a failure to give real and genuine consideration to the submissions in relation to the applicant having been on bail in respect to the first attempted illegal departure. The Authority’s reasons as summarised above address the attempted illegal departure thoroughly and repetitively. The Authority’s reasons, as summarised above, reflect taking into account both expressly asserting the same and in the reasoning, as summarised above, the submissions advanced on behalf of the applicant. This is not a case where there is any basis for finding that the Authority has not taken into account the written submissions made to the Authority. No such inference should be drawn in the circumstances of the present case. 

3. On the face of the Authority’s reasons, the Authority gave real and genuine consideration to the applicant’s claimed fear of harm by reason of his earlier attempted departure and being on bail. There was no failure to conduct the review as required under s 473CC of the Act, or a failure to consider the review material under s 473DB of the Act, or a failure to give genuine realistic consideration to the submissions advanced on behalf of the applicant in relation to ground 3(a)(iv) or (viii).

4. The next category addressed by Mr Zipser in relation to ground 3 was paragraph (a)(iii). In that regard Mr Zipser took the Court back to the applicant’s statement and submissions, which have, in fact, been summarised above in these reasons. Mr Zipser submitted that there was no express reference to the warning to report. Mr Zipser’s skilful eye is correct in identifying the absence of the use of warning. However, as referred to above, it is apparent that the substance of the evidence was correctly identified in paragraph 25 of the Authority’s reasons, where there is reference to the applicant being told to stay in the village and report whenever called for. There is no basis in the circumstances of the present case to infer that the Authority failed to have regard to the applicant’s evidence or submissions as alleged in ground 3(a)(iii). Further, the reference to the warning was in the context of the applicant’s claimed fear of harm by reason of actual or imputed LTTE association, and the Authority clearly made dispositive findings that subsume the applicant’s claim in relation to being told to stay at his village and report whenever called for. Accordingly, the Court finds that there was no failure to conduct the review required under s 473CC of the Act or to have regard to the review material pursuant to s 473DB of the Act, or failure to consider the applicant’s claims and submissions as alleged in respect of ground 3(a)(iii).

5. The third category that Mr Zipser sought to address in support of ground 3 was paragraph (a)(vi). In that regard, Mr Zipser took the Court to references to abduction, torture and sexual violence in the Court Book at pages 208 and 235, as well as in the submissions at page 161 of the Court Book.  Mr Zipser took the Court to the Authority’s reasons at pages 281 to 283 of the Court Book and drew attention to the absence of an express reference to abduction, torture or sexual violence.

6. The Authority’s reasons are not to be read with a keen eye for error and should be read as a whole. Notwithstanding the skilful arguments by Mr Zipser, there is no proper basis to infer that the authority failed to take into account the applicant’s claims, evidence and submissions in the circumstances of the present case. The Authority’s express reasons are inconsistent with any such inference being drawn, and the detailed reasoning of the authority is consistent with having close regard to the submissions advanced on behalf of the applicant. It is not necessary for the Authority to refer to every piece of information before the authority. 

7. The Authority did not fail to conduct the review required under section 473CC or to consider the review information in accordance with section 473DB, or fail to consider the submissions, claims and evidence of the applicant as alleged in ground 3(a)(vi). Further, on a fair reading of the authority’s reasons as a whole, the authority gave real and genuine consideration to the applicant’s submissions, claims and evidence. No jurisdictional error as alleged in relation to ground 3(a)(vi), is made out.

8. Mr Zipser confirmed that the other paragraphs in ground 3 were advanced in support of the three categories that the Court has already addressed and were not independent grounds of alleged error.  No jurisdictional error, as alleged in ground 3(a), is made out. 

9. In relation to paragraph 3(b), Mr Zipser submitted that given the reference to cumulative consideration that had been repeated a number of times in the Authority’s reasons, ground 3(b) should be understood as interdependent upon the grounds advanced in relation to ground 3(a) and the three categories referred to, either individually or by reason of a cumulative assessment of those grounds.

10. For the reasons I have already given, there is no substance in the alleged error in respect of ground 3(a). The Authority’s reasons clearly reflect the cumulative consideration of the applicant’s claims and circumstances, both under the Refugees Convention and in relation to complementary protection. No jurisdictional error as alleged in ground 3(b) is made out. 

Ground 1

1. In relation to ground 1(i), Mr Zipser of counsel submitted that there was no evidence to support the Authority’s reasons in paragraph 21. Paragraph 21 of the Authority’s reasons is as follows:

   21. I have considered information in the referred materials and the applicant’s claim that he was called in for questioning by the CID on a number of occasions whilst in the DP camps. I note from the referred material that the Sri Lankan authorities, including the SLA and the CID, undertook a comprehensive and multi-stage screening process to identify members of the LTTE both prior to and whilst persons were in the DP camps. This included using former LTTE members as informers to identify persons. Former LTTE and military intelligence personnel often walked through DP camps and pointed out persons who were then taken for further interrogation. During the interrogations, the authorities commonly used inducements, threats and physical violence. Detainees were often questioned on many occasions. The applicant’s general claims in this regard are consistent with the referred information and are plausible. I accept that the applicant was called in for interrogation a number of times and suffered violence and injury on those occasions. I also accept that he was pressured to identify persons who may have been linked to the LTTE. However, I take into account that persons who were suspected of any involvement or association with the LTTE, including those with only a civilian or familial association, were separated from their families and taken to detention centres and on that basis, I do not accept that the applicant was questioned about his stepfather or that his family was perceived as being a LTTE family.

2. The difficulty with that submission is that it is apparent that the Authority, in its reasons, was seeking to refer to country information. A similar finding in respect of separation from families was identified by the delegate in respect of country information. The taking of those suspected of LTTE connection to rehabilitation or detention centres was also expressly referred to in the country information provided by the applicant as summarised above. Further, the Authority’s reasons are not to be read with a keen eye for error.

3. The Authority’s reasons were not based solely on the applicant not being separated and taken to a detention centre. The Authority’s reasons referred to country information and referred to the applicant continuing his employment and being the subject of no attention for 21 months.  The Authority also referred to there being no circumstances alleged of the claim that gave rise to the families being released by the payment of bribes. The adverse finding in paragraph 21 was open to the Authority on the material before the Authority and did not reflect any misapprehension of the evidence, was reasonable and cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 1(i) is made out.

4. In relation to ground 1(ii), Mr Zipser focused specifically on the highlighted bolded reference in paragraph 41 of the Authority’s reasons:

   On the basis of the evidence before me, I accept that the applicant may be questioned on return as part of the airport screening process. The country information before me indicates that this could involve an interview, contact with the police in his home area, his family and/or neighbours. They would also check criminal and court records and I accept that it is likely that the applicant will be identified as having left Sri Lanka whilst on bail for a previous immigration offence. I take into account that the applicant was released on bail and has not been followed up by the authorities for over four years. I also take into account that he has never claimed to have been anything other than a passenger. I am satisfied that his first illegal departure offence is a minor offence and would not give rise to any more than a low-level interest. I am therefore satisfied that leaving Sri Lanka whilst on bail for this offence would not give rise to any more than low-level interest and that his repeat offence would not give rise to an adverse security or criminal profile. The country information before me indicates that returned asylum seekers and those with an otherwise low profile are not generally at risk of harm on return to Sri Lanka. There is no evidence before me that indicates that the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart. I am satisfied that the applicant would not be at risk on return on the basis of any adverse security or criminal profile, including for having departed whilst on bail for a previous attempt, and I find that notwithstanding his personal profile, there is not a real chance he would be subjected to harm because he is a returning asylum seeker.

5. Mr Zipser submitted that the reference to “no evidence” should be read literally and that this was inconsistent with the evidence otherwise identified in the Authority’s reasons.  The Authority’s reasons are not to be read with a keen eye for error. The reference to there being no evidence before the Authority indicates the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart, read in context, was a finding made in light of the low profile and the low level of interest in respect of a repeated offence referred to in the Authority’s reasons, including the absence of a criminal profile.

6. The Authority’s reasons in relation to there being no evidence before the Authority that indicates the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart was a finding that was open to the Authority, open on the evidence, cannot be said to reflect a misapprehension of the evidence, and cannot be said to lack an evident and intelligible justification. Such adverse finding was reasonable and open to the Authority.  No jurisdictional error, as alleged in ground (1)(ii) is made out.

7. In relation to ground 1(iii), Mr Zipser focused on what was said in paragraph 44 of the Authority’s reasons, and the acceptance by the Authority that the applicant’s earlier attempted illegal departure would be known and that he had breached his bail. These were matters referred to and taken into account by the Authority in the Authority’s reasons.  Paragraph 44 of the Authority’s reasons is as follows:

   As the applicant left Sri Lanka in breach of the I&E Act, I find that there is a real chance he would be charged and fined under that law. I have found that the applicant does not have an adverse profile or is otherwise of interest to the authorities, although I accept that his previous attempt to depart Sri Lanka and bail status may become known. If the applicant were to plead not guilty, I accept that the court would take into account that he has previously left Sri Lanka whilst on bail. However, there is no information before me that indicates that the applicant was involved in organising or facilitating people smuggling and as noted above, ordinary passengers are generally viewed as victims. There is no information before me that indicates that persons who have breached immigration-related bail are refused further bail, although I accept that a court may impose more stringent bail conditions on the applicant (such as reporting requirements). I also take into account that the applicant’s aunt provided surety for him before and he has not claimed that he would not be able to access a guarantor again should it be required. Having regard to all of these circumstances, I am not satisfied that the imposition of more stringent bail conditions, if imposed at all, would be conduct that amounts to serious harm.

8. The adverse findings in paragraph 44 did not reflect any absence of evidence or misapprehension of the evidence in concluding that the applicant would not be exposed to a risk of serious harm by reason of the fine being imposed and/or the questioning, detention or requirement for a surety. The Authority took into account the release of the applicant following the attempted departure. There was no legal unreasonableness in the adverse finding in paragraph 44. No jurisdictional error as alleged in ground (1)(iii) is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error accordingly, the amended application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 16 November 2018