DXM16 v Minister for Immigration

[2018] FCCA 3675

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3675

Catchwords:
MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DD
Freedom of Information Act 1982 (Cth)

Cases cited:

CRW16 v Minister for Immigration and Border Protection [2018] FCA 710

Applicant: DXM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2757 of 2016

Judgment of: Judge Riethmuller

Hearing date: 18 September 2018

Date of Last Submission: 18 September 2018

Delivered at: Melbourne

Delivered on: 12 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2757 of 2016

DXM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made 22 November 2016.  That decision affirmed a decision of the delegate of the Minister not to grant the applicant a Safe Haven Enterprise (subclass 790) visa.

2. The applicant is a citizen of Sri Lanka from Aliyawalai, Jaffna district and of Tamil ethnicity.  The applicant arrived in Australia by boat in August 2012.  He applied for a protection visa in 2013, however this was an invalid application.  The applicant validly applied for a Safe Haven Enterprise visa (an alternative to a protection visa that was made available by the government) on 2 December 2015.

3. The delegate refused to grant the visa on 16 August 2016.  The decision of the delegate was referred to the IAA on 17 August 2016.  The decision to refuse to grant the visa was upheld by the IAA on 22 November 2016.

The applicant’s claims

1. The IAA summarised the applicant’s claims at [6] of the decision.  In summary, the applicant claims:

   a)When he was 18 years old, he, ‘his mother and sister-in-law and her children’ were taken to a welfare camp run by the Sri Lankan Army (‘the SLA’).  The applicant was then taken to ‘a detention camp where he was detained for a year under harsh conditions’ where he was interrogated.  After one year he re-joined his mother in the welfare camp.

   b)His family re-grouped after the war but ‘heavy-handed treatment against Tamils continued.’  The applicant was required to register with the SLA every day, this rule was relaxed to every week and by the time it was relaxed to every two weeks, the applicant decided not to comply.

   c)An agent gave him a work permit for South Africa.  When in South Africa, the applicant was given a two week tourist visa.  When he returned to Sri Lanka, the CID were looking for him as he had missed his regular registrations.  They eventually found the applicant and took him to an army camp where he was tortured and lost consciousness.  ‘He regained consciousness on a country road far from home and did not know how he had got there.  There were welts on his arm.’  His family collected him and took him to a doctor who told him ‘that some sort of chemical had been administered to him and that was why he was unconscious’.

   d)‘After this he never reported to the SLA again as he was too frightened of the SLA and the CID’. His relatives pooled money for him to travel to Australia.  He travelled to Australia illegally by boat with his brother.

   e)The applicant ‘fears being abducted, detained, beaten, tortured and/or killed by the authorities (army/police/CID) in Sri Lanka’.

The IAA’s findings

1. The IAA had regard to the applicant’s submissions received on 22 September 2016 and was satisfied (at [4]) that they did ‘not constitute new information’. The submissions also contained ‘country information reports from 2014 and 2015 [and] several links [web addresses] to interviews and speeches’. At [5], in respect of this information, the IAA was ‘not satisfied the requirements in s.473DD(b) are met’.

2. The IAA considered the applicant’s ability to give clear evidence: see [8] and [9]. The IAA had regard (at [9]) to the applicant’s study and that ‘he has suffered through difficult experiences in the war, afterwards in camps’. However… [was] not satisfied that these factors [had] impacted the applicant’s ability to present his claims for protection, or to recall events that he personally experienced’: see [9].

3. The IAA accepted the applicant’s evidence (at [10]), saying:

   10. …I accept [the applicant’s] description of the events he experienced during the war and in its immediate aftermath throughout 2009. This includes inter alia, his family’s movements between the army controlled Jaffna and the LTTE controlled areas in the final stages of the war, his avoidance of LTTE recruitment, the family’s detention in the Kodikaman Army Camp and the applicant’s detention in the Tellipalai Rehabilitation Centre.  The applicant has been adequately consistent in these details since his arrival in Australia, he has provided supporting documentary evidence, and his claims are not implausible when considered against the country information before the delegate. 

4. The IAA accepted ‘that neither the applicant, nor any of his family members were ever a member of, or involved with, the LTTE’ and further that the applicant ‘was taken to rehabilitation from April 2009 – January 2010 because he was a young Tamil who had arrived at the welfare camp from an LTTE controlled area’: see [11].

5. The IAA accepted the applicant ‘faced interrogations and physical harm during his time in both camps’: see [12].

6. In considering whether the applicant held a well-founded fear of persecution, the IAA stated (at [33]):

   33. I accept the applicant is a young Tamil male from LTTE controlled areas in the Northern province who underwent rehabilitation in 2009 – 2010 and was subject to some monitoring and reporting immediately following his release. I am not satisfied the applicant reneged on reporting requirements when he went to Africa, or that he was otherwise of adverse interest to authorities at that time. While I do accept he was questioned upon returning from Africa, in February 2012, I do not accept he was detained overnight nor that after he left the airport he was subsequently subject to further reporting, was harmed, or was of any adverse interest to the authorities.

7. The IAA further considered that the applicant’s experiences in the war and questioning upon his return from Togo ‘may have instilled in him a subjective fear of the authorities in Sri Lanka’: see [34]. However, the IAA further considered, ‘the situation for Tamils in Sri Lanka including in the East, has changed considerably’. The IAA had regard to the changing political landscape in Sri Lanka (at [35]), the UNHCR’s 2012 advice (at [36]) and DFAT advice (at [37]). On this information, it concluded (at [38]):

   38. I am not satisfied that the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and origins from the North. Further, the country information before me also does not indicate that there is a real chance that the applicant would face persecution in the reasonably foreseeable future on account of his being a Tamil of male gender or that this would contribute to his having a profile of adverse interest to any authorities. I have found that the applicant was not of adverse interest to authorities when he departed Sri Lanka in 2011, and that while he was questioned upon return, I found there was no further adverse interest on suspicion of LTTE membership or support, nor any other reason after he left the airport in February 2012. I am not satisfied he would be of interest upon return. I am not satisfied that his profile is such that there is a real chance the applicant will be detained under the operation of the PTA, or that he otherwise has a well-founded fear of persecution on the basis of any imputed LTTE support or links.

8. The IAA accepted that the applicant would be recognised upon return as a failed asylum seeker: see [39]. The IAA considered he may be ‘interviewed’ in accordance with ‘standard procedures, regardless of their ethnicity and religion’ and that no harm would flow to the applicant from this: see [40].

9. The IAA considered that the applicant would be ‘no longer of interest to the authorities on account of suspected LTTE links’ and that risk of torture or mistreatment upon return would be low: see [41].

10. The IAA accepted that the applicant departed illegally and may be charged for this: see [43]. The IAA considered that the applicant will ‘face a brief period of detention but that the conditions will not be such as to rise to the level of a threat to his life or liberty, or to signify physical harassment or ill treatment: see [44].

11. The IAA concluded on the matter (at [47]):

    …that the applicant will be issued a fine and released, or if he pleads not guilty, he will be released on his own personal surety.

12. The IAA ultimately concluded at [50] that the ‘applicant does not meet the requirements of the definition of refugee’.

13. The IAA considered whether there were any complementary protection grounds.

14. The IAA accepted that ‘as a failed asylum seeker who departed Sri Lanka illegally the applicant may be questioned upon return’ (at [56]) but was ultimately satisfied that the applicant does not face ‘a real risk of significant harm upon return’. Further, the IAA was ‘not satisfied there is any reason the applicant will not receive bail: see [57]. The IAA considered the applicant ‘will likely receive a maximum fine of up to 200 000 rupees’ and found that ‘the imposition of such fine’ would not result in ‘pain and suffering, physical or mental’: see [58].

15. The IAA concluded (at [60]) that there is no ‘real risk that the applicant will suffer significant harm’.

Grounds of application

1. The applicant relied upon three of the four grounds in his application.

Ground 1(a)

1. Ground 1 is framed in the application with two particulars as follows:

   1. The Immigration Assessment Authority (“Authority”) fell into jurisdictional error in that it failed to consider relevant considerations of the Applicant’s claims or integers of claims or information required by the act or the law to be considered.

   Particulars

   a. The Authority did not consider information given in the form of citations of links to internet material, because it said “there are no dates indicated in the submission and the links do not work”. (CB 250, [5]. The Authority failed to give an opportunity to the Applicant or his Representative to provide further information regarding the links to interviews and speeches provided by the Applicant. In addition, the Authorities failed to give an opportunity to the Applicant or his Representative to provide alternate copies of the interviews and speeches relied upon by the applicant to establish his case. If the Authority had difficulty in relation to the links, no explanation had been sought from the Applicant to clarify these vital information provided by the Applicant (paragraph 5 of the Decision)

   b. The Authority did not consider and determine the claims of the Applicant to fear harm as a result of the process of “singhalisation”. (CB 239)

2. On 22 September 2016, the solicitors for the applicant made written submissions to the IAA on behalf of the applicant.  At p.2 of those written submissions the solicitor (an accredited specialist in immigration law and a migration agent) wrote the following (at Court Book p.240):

   Although the delegate states in paragraph 119 of the Decision that there are no official laws or policies that discriminates against Sri Lankans including Tamils on the basis of their race or religion including in relation to access to education and employment which she has followed up in her paragraphs 121-122 claiming that Tamils as a race are no longer subjected to any discrimination.  In fact, and in reality, the Tamils are being completely discriminated as far as jobs, university education, land allocation, recruitment into any of the government security forces.  This has recently been highly amplified in an interview with the Chief Minister of the Norther Province, the Honourable Mr C.V Vigneswaren, retired Supreme Court Judge.  This interview with the Daily Mirror highlights the plight of Tamils in Sri Lanka who have suffered loss of the loved ones and still has not received justice in that country.  Please access link here would also request the IAA to listen to few of his previous speeches relating to the Tamil youth problems and discrimination by the Sri Lankan government which can be obtained under Tamilnet.com and LankaSri.com.

   1. >

   The IAA had regard to the submissions, but found that the internet addresses were incorrect and was also concerned that there was no explanation for why this material had not been provided earlier and nor how it would come within the requirements of s.473DD(b) of the Migration Act 1958 (Cth) (‘the Act’). The IAA said (at [5]):

   5. The submission also contains country information reports from 2014 and 2015 several links to interviews and speeches uploaded by the Daily Mirror, TamilNet and LankaSri.com on YouTube. While the submission states they are recent uploads, there are no dates indicated in the submission and the links do not work. No explanation has been provided as to why the country information reports, the interviews or speeches could not have been provided prior to the decision being made, nor how they amount to credible personal information. I am not satisfied the requirements in s.473DD(b) are met.

3. The applicant argues that the IAA ought to have provided his solicitor with an opportunity to provide further information about the links when they did not work correctly.  There is no evidence before the Court that the material said to have been available at those web addresses is, in fact, available for viewing, nor has a copy of it been provided to the Court.  No explanation has been provided as to why the links failed to work, for example, whether the solicitor failed to correctly transcribe the correct web addresses into the submissions, or alternatively whether the material is simply no longer available for viewing over the internet.

4. It is well understood that information available on the internet is ephemeral as its continued availability is entirely dependent upon the actions of the person providing that information on the internet.  Even links to pages of large government departments regularly fail as a result of the department updating and reorganising material that may be available on the internet.  If it is important to rely upon material available over the internet for future referencing, it is necessary to download and retain a copy.

5. Of the four YouTube videos that were referred to, only one contained a reference to the name of the speaker.  No dates were provided.  No specific particulars showing the precise relevance of the material to this case are identified. Rather, the material is described in very general terms.

6. The applicant confronts three difficulties with respect to this argument.  First, the applicant has only provided an ephemeral web address, and has not purported to provide the material itself, nor even an address to a website that is generally considered to contain archives of material (in the way that may generally be considered to contain archives of law reports).  Whilst one would expect the IAA to inquire of an applicant if an electronic document arrived at the IAA and was corrupted such that it could not be successfully opened, I am not persuaded that this should extend to web links, rather than electronic attachments.

7. Secondly, as counsel for the Minister argues, there is nothing in the submissions to indicate how this material would arguably come within the ambit of s.473DD of the Act. As counsel for the Minister says (at [12] of the Minister’s submission):

   12. Here, any one or more of the following factors entail that it was open to the Authority not to write to the applicant, and invite him to try a different way of giving the speeches to it.

   12.1. First, the applicant gave no explanation for why the speeches could not have been given to the Department before the delegate’s decision was made, and why the speeches comprised “credible personal information”. Thus, unlike the situation in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [21] for example, there was no “good reason to expect” to think that speeches for which the inoperative links were provided could be considered under section 473DD.

   12.2. Secondly, there was in fact good reason to think that the speeches would not comprise credible “personal information” within the meaning of section 473DD(b)(ii) of the Act. The applicant’s description of the contents of the speeches as “relating to the Tamil youth problems and discrimination by the Sri Lankan government” did not suggest that the speeches would contain such information (FN: Cf. BDF17 v Minister for Immigration [2018] FCCA 2095 at [71]-[79]).

   12.3. Thirdly, the applicant had already had substantially more than the 21 days allowed by the Direction for the provision of any “new information”.

8. Thirdly, in a case where the error is said to relate to a failure to consider material that may now be lost in any event, it is difficult to see why the discretion ought not to be exercised against the applicant in circumstances where there is no evidence that the material continues to exist.  There is no point to sending the case back to the IAA if the material no longer exists, and the only evidence before the Court is that the links referred to by the applicant’s solicitor do not lead to the material concerned.  

9. I am not be persuaded that writs should issue, even if the applicant overcame the first two difficulties, in the absence of evidence that the material continues to exist or reasonably available to be provided to the IAA and of some relevance, otherwise the issue of constitutional writs would be pointless.

Ground 1(b)

1. The applicant also complains that the IAA failed to consider the ‘process of singhalisation’ in its decision, which the applicant says was an integer that required specific consideration.  The applicant’s solicitor provided submissions to the IAA on 22 September 2016 (at Court Book p.239) saying:

   We are instructed that the current development in the Northern Province of Sri Lanka is tensed due to race regulated clashes which has again re-ignited in the Jaffna University between Singhalese and Tamil students. While the government of Sri Lanka is purposely and defiantly involved in "singhalisation" of the Tamil area, one way of racial discrimination appears to be that more number of Singhalese students are being admitted into Jaffna University which is the one and only University in the northern province originally catering to only Tamil students in that area. But the government has not given the same opportunity for a Tamil student to get admission in any of the Universities in the South or in the areas dominated by the Singhalese communities. The moment there is any form of ethnic tension and fighting between the Singhalese and Tamil students, the Singhalese army stationed in the North participates along with the Singhalese students and this has created violence and tension in the north and fear created in the Tamil population living in the North.

   The fear of “singhalisation” of the Tamil areas especially with the Singhalese army officers being provided with lands about which the Applicant fears in returning currently as we are instructed that the situation is worsening.

1. Counsel for the Minister points out that the IAA dealt with the question of discrimination against Tamils, saying at [37] of the decision:

   37. I note DFAT acknowledges that there is a moderate level of societal discrimination resulting largely from the conflict (FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 3.3). However, country information indicates there have been significant positive developments for Tamils in the country’s politics and that the situation has generally improved, including through a decrease of monitoring and harassment in the Northern Province. Country information does not indicate that there is discrimination or harassment of a level amounting to serious harm. I find that while the applicant would not face a real chance of serious harm through official or societal discrimination or harassment upon returning from Australia to Sri Lanka.

2. As counsel for the Minister argues, the concept of ‘singhalisation’ is a description of a process of discrimination against Tamils.  Of course, societies do change in their social structures over time, just as we have seen in Australia as the culture has moved markedly away from what was a predominantly British culture 100 years ago.  It is clearly in the pejorative sense that the applicant uses the term, claiming that the effect of the cultural shifts being encouraged by the government is significant discrimination against Tamils and therefore potentially a form of harm that amounts to a real risk of serious harm to the applicant for the purpose of the test required by the visa.  As shown in the paragraph quoted above, the IAA noted the DFAT report as to a moderate level of societal discrimination, but concluded that it was not at a level amounting to serious harm.

3. In the context of this case, I am not persuaded that the concept of ‘singhalisation’ must be separately addressed from the question of the impact of discrimination against Tamils in Sri Lanka. 

4. In the circumstances, I am not persuaded that the applicant has established a ground with respect to either particular of ground 1.

Ground 2

1. Ground 2 is framed as follows:

   2. The Authority fell into jurisdictional error in that it denied procedural fairness to the applicant.

   Particulars

   The Authority made the decision without giving the applicant and his representatives the time that they requested so that they could receive documents from the Minister's department under the Freedom of lnformation Act. (CB 233,236,239; CB 252, paragraph 9 of the Decision)

2. To the extent that ground 2 relates to the matters considered under ground 1(a) above, I find that the applicant has not established a ground for the same reasons.  The fact that the IAA invited submissions does not alter my views under ground 1(a).

3. The applicant argues that because his solicitor sought an extension of time to make submissions to the IAA, in order to allow a Freedom of Information (‘FOI’) process to be completed (at an unspecified time in the future), the IAA fell into error in proceeding.  Further, that prior to the completion of the applicant’s IAA process, there should have been a reasonable opportunity for the applicant to consider any documents received under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’). The submission (at Court Book p.239) said:

   We refer to the above matter and confirm that we are now retained to assist the Applicant in the matter before the IAA. The Applicant instructed us to apply for copies of documents in the custody of the Department under the Freedom of Information Act (FOI), which we promptly did as soon as we were retained. Thus, we requested the 1AA for an extension of time for us to consider and submit all matter that may become relevant from the FOI documents. Unfortunately, our request was not acceded and we are compelled to submit our submissions before 23^rd September 2016.

4. There is nothing in this request by the applicant’s solicitors to indicate that there are any particular documents being sought, or that there is either a hope or expectation that the documents would address some specific particularised issue that would be relevant for the IAA. From the material contained in the submissions to the IAA, it is difficult not to conclude that the FOI request was a fishing expedition to trawl through documents in the hope of finding something that may be useful. There is nothing in the submission to indicate that a new request had been made under the FOI Act, nor an estimate of the timeframe within which the request would be fulfilled, nor any estimate given to the IAA (even if the FOI provider had not given an estimate to the solicitor), as some indication of a reasonable timeframe. In the absence of a specific purpose for the FOI material, and some form of timeline, it is difficult to see that it would be appropriate for the IAA to pause its process under the Act, just as it would be unlikely for a Court to adjourn proceedings on such limited information.

5. If there were some specific purpose to which the FOI request was addressed, the importance of this purpose could be considered in the context of the case in order to make a determination as to whether or not it was reasonable to adjourn the proceedings to await the material.  Such a request ordinarily would address the estimated delay that may be involved so it could be taken into account.

6. Counsel for the Minister also identifies the statutory context of the IAA process, arguing that that context tells strongly against waiting for the outcome of an FOI request.  Counsel submitted:

   22. In any event, it was not incumbent on the Authority to wait an unspecified period (possibly months) as the applicant pursued a request of the Department:

   22.1. in accordance with a different legislative scheme (the FOI Act) that does not intersect with the Migration Act;

   22.2. where Parliament has deliberately chosen not to give the applicant an entitlement to written material before the Authority (cf. section 362A of the Act);

   22.3. where, specifically, section 473DA(2) provides that “[t]o avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65”;

   22.4. where the values in Part 7AA reflect an imperative for speed and efficiency; and

   22.5. where, in particular, the Direction made under section 473FB requires any submission to be given within 21 days of the referral.

7. Whilst I am firmly of the view that it is open to the IAA to provide an applicant time to await the outcome of an FOI request, in an appropriate case where the significance of the material potentially to be obtained can, at least, be hypothesised with particularity, I am not persuaded that a mere FOI request alone is a basis upon which the IAA would reasonably grant further time.  This is so, given the statutory imperatives upon it to undertake its task, as outlined by counsel for the Minister.

8. This issue was dealt with at length by Flick J in CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 where his Honour said:

   34. The rejection of the first Ground of Appeal leaves for resolution the alternative Ground, namely that the Authority “act[ed] unreasonably” in proceeding with the review without awaiting the outcome of the Freedom of Information Act request.

   35. A number of decision have expressed in various ways the manner in which the concept of “unreasonableness” is to be understood as the basis upon which a statutory decision may be set aside. One such formulation is that a decision cannot be “arbitrary or capricious” or one which “abandon[s] common sense”: Minister for Immigration and Citizenship v Li[2013] HCA 18 at [28], [2014] FCAFC 1; (2013) 249 CLR 332 at 350 to 351. After referring to the oft-quoted observations of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, French CJ there made the following observations:

   [28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

   (Footnote omitted.)

   Such is the approach to be followed in the present case.

   36. The second Ground of Appeal is rejected. That is a conclusion driven in part by the statutory scheme but a conclusion ultimately dependent upon the facts of the present case.

   37. Of relevance in reaching this conclusion, it is to be recognised that the Authority “may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority” (s 473DB(2)) and may “accept” new information, although it is not under a “duty” to do so (s 473DC(2)). And that ability to “accept” new information is constrained by s 473DD such that it cannot do so unless (inter alia) there are “exceptional circumstances”.

   38. Not in issue, accordingly, is the ability of the Authority to defer its consideration of a review for such period of time as is consistent with it also achieving the objective of expedition set forth in Pt 7AA. Also not in issue is the fact that the Authority was both conscious of the outstanding Freedom of Information Act request; the position being urged by the Appellant; and also the fact that the Authority was doing all that it could which was within its control to make available to the Appellant all of what it considered to be “materially relevant” material. So much emerges from para [8] of the Authority’s reasons for decision. The provision of that material by the Authority to the Appellant is to be viewed against the statutory context that the Authority was not “require[d] ... to give to a referred applicant any material that was before the Minister” (s 473DA(2)).

   39. By not acceding to the request to defer making its decision, the Authority unquestionably precluded any ability on the part of the Appellant, before the Authority made its decision, to have his Freedom of Information Act request resolved; any ability to review such documents as were released; and thereafter make all or selected documents available to the Authority to consider whether it should “accept” that material (s 473DC(2)) and consider whether the requirements set forth in s 473DD were satisfied.

   40. In proceeding not to defer its review process, the Authority failed to make any inquiries as to such matters as:

   o  whether the Minister or the Department had given any consideration to the Freedom of Information Act request and whether any claim for exemption or non-production of documents was then in contemplation;

   o  when a decision in respect to that request was likely to be made; or

   o  the extent of the delay which would be occasioned by acceding to the Appellant’s request for a deferral of the Authority’s consideration.

   Although it may have been prudent for the Authority to make such inquiries, its failure to do so does not render its decision unreasonable.

   41. Given the inability on the part of the Appellant to make out any argument as to unreasonableness, it is unnecessary to resolve a further submission advanced on behalf of the Appellant that “unreasonableness”, in the statutory context of Pt 7AA, confers a greater procedural protection upon a party than the rules of procedural fairness. In the present proceeding, that procedural protection would be an entitlement to have material made available under a Freedom of Information Act request prior to any consideration being given by the Authority to the review required by s 473CC.

   42. Both the content of the rules of procedural fairness and the principle of “unreasonableness” must necessarily be constrained by the statutory context. Although unnecessary to resolve the argument, it is difficult to see how “unreasonableness” could so operate as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Pt 7AA. Not only would such a conclusion potentially run contrary to the scheme set forth in Pt 7AA; it would also potentially prejudice the intended legislative intent behind s 473DA(1). Such a construction would only henceforth invite grounds of review being reformulated to characterise an alleged procedural deficiency as being “unreasonable” rather than a denial of “natural justice”. On such an approach, a draftsman could avoid the constraints imposed by s 473DA by re-characterising a ground of review as “unreasonableness” rather than a requirement of “natural justice”.

9. In the circumstances, I therefore find that the applicant has not established ground 2 of the application.

Ground 3

1. Ground 3 is framed with considerable particulars as follows:

   3. The Authority fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.

   Particulars

   a. The Authority had no logically probative evidence from which it could conclude that the Applicant would have no real chance of suffering serious harm or no real chance of suffering significant harm during the period after his future return to Sri Lanka while the authorities investigated (CB 259, [ 40]) and even if he was not ultimately regarded as being of interest as an L TTE member or supporter or associate. (CB 259,263; Decision Record, [491, [59])

   b. This finding was also unreasonable, given that the authority had accepted his evidence of having "faced interrogation and physical harm during his time in both camps" (CB 253, Decision [12]) even though it concluded that the authorities' "suspicions about the applicant being a possible LTTE threat had decreased during the period he was in detention.” (CB 253, Decision [14])

   c. The Authority was unreasonable in not accepting that the Applicant had been hit or suffered serious harm when he was detained overnight on his return from Africa in 2012, given its finding that they treated him with some suspicion. (CB 255-256, [26]

   d. The Applicant refers to and repeats the Particulars to the other Grounds of the Application.

2. The way in which ground 3 is framed in the application gives the appearance of a ground seeking a merits review as a result of the applicant hoping to have persuaded the IAA to reach a different conclusion on the material before it.

Grounds 3(a) and (b)

1. With respect to particulars (a) and (b) the applicant argues that it was clearly unreasonable for the IAA to conclude that he had no real chance of suffering serious harm during a period of likely detention upon his return to Sri Lanka while the authorities investigated: see [40]. It was said that this finding was unreasonable because the IAA had accepted the applicant’s evidence of having faced interrogation and physical harm during time in camps: see [12].

2. Importantly, the IAA accepted that suspicions about the applicant having a possible LTTE connection had decreased during his earlier period of detention: see [14]. The IAA also concluded that in light of the country information it was satisfied that the situation for Tamils had improved considerably over the years, setting out (at [33] to [37] of the decision):

   33. I accept the applicant is a young Tamil male from LTTE controlled areas in the Northern province who underwent rehabilitation in 2009 – 2010 and was subject to some monitoring and reporting immediately following his release. I am not satisfied the applicant reneged on reporting requirements when he went to Africa, or that he was otherwise of adverse interest to authorities at that time. While I accept he was questioned upon returning from Africa, in February 2012, I do not accept he was detained overnight nor that after he left the airport he was subsequently subject to further reporting, was harmed, or was of any adverse interest to the authorities.

   34. I accept that the applicant’s previous harm in the camps and the questioning he experienced upon return from Africa may have instilled in him a subjective fear of the authorities in Sri Lanka. However since the end of the war (particularly in the four years that the applicant has been in Australia) the situation for Tamils in Sri Lanka including in the East, has changed considerably. The Sirisena government, elected with popular Tamil support [FN: The Washington Post, “Sri Lanka’s surprise political transition”, 11 January 2015, CXBD6A0DE231] has also taken a more proactive approach to human rights and reconciliation than the previous government. This has been demonstrated in various ways including through the establishment of a reconciliation taskforce [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 2.29 and 2.31], the noticeable demilitarisation of the Northern and Eastern Provinces, the replacement of military governors with civilians governors in those areas [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 2.29 and 2.31] and a reduction in high security zones. The government has also released some individuals held under the Prevention of Terrorism Act 1979 (PTA). DFAT reports that with the decrease of monitoring and harassment under the Sirisena government, the Tamil community feels more confident to refuse or question the motives of any monitoring activities that still occur [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 3.9].

   35. Other recent developments in Sri Lanka’s political landscape are significant and indicative of a more positive future for Tamils. The August 2015 parliamentary election was deemed credible by international and domestic observers [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 2.26]. The major Tamil political party, the Tamil National Alliance (TNA) is now formally in opposition, thereby generally enhancing Tamil representation as well as the TNA parties’ power as players in Sri Lankan politics [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 2.2, 2.26]. Notably Sirisena government is said to be engaging constructively with the TNA and the international community [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 2.29 and 2.31].

   36. In considering the risk of such harm to the applicant in the reasonably foreseeable future, I have considered the UNHCR’s 2012 advice which is its most current risk assessment. UNHCR does not indicate that Tamils are at risk of persecution in Sri Lanka purely on account of their race [FN: UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012 UNB0183EA8], nor when they originate from an area that was previously controlled by the LTTE [FN: UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012 UNB0183EA8]. The UNHCR’s guidance does not support a finding that Tamil ethnicity of itself imputes LTTE membership or a pro-LTTE opinion, even when combined with place of origin. This advice remains current in line with the fact the security situation has improved with a decrease in militarisation and monitoring trends in the North [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 2.37 – 2.39; International Crisis Group, “Sri Lanka's North I: the denial of minority rights”, Asia Report No.219, 1 March 2012, CIS22742]. The UNHCR’s view is shared and reinforced by, more recent and current reports from a variety of other credible sources including the UK Home Office [FN: United Kingdom (UK) Home Office, "Country Information and Guidance - Sri Lanka: Tamil Separatism", 1 August 2014, CIS29809]. DFAT also reinforces this view and assesses that since the war’s end, incidences of extra-judicial killing, disappearances and kidnapping for ransom has fallen considerably and no particular group has recently been the target of kidnappings or extortion [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 4.10].

   37. I note DFAT acknowledges that there is a moderate level of societal discrimination resulting largely from the conflict [FN:  DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 3.3]. However, country information indicates there have been significant positive developments for Tamils in the country’s politics and that the situation has generally improved, including through a decrease of monitoring and harassment in the Northern Province. Country information does not indicate that there is discrimination or harassment of a level amounting to serious harm. I find that while the applicant would not face a real chance of serious harm through official or societal discrimination or harassment upon returning from Australia to Sri Lanka.

1. In light of the IAA accepting that the situation in Sri Lanka had improved considerably, and that there had been a lessening of suspicions about the applicant when he had previously been in detention, it was open to the IAA to reach the decision that it did.

Ground 3(c)

1. Particular (c) argues that it was unreasonable for the IAA not to have accepted that the applicant had been hit or suffered serious harm when detained on his return from Toga in 2012 in light of him previously having faced physical harm when he was in camps, as referred to by the IAA at [12] and [26].  The camps incident occurred in 2009 to 2010.  The applicant travelled to Toga in late 2011 through to early 2012.  The IAA outlined significant inconsistencies in the applicant’s version of events with respect to his travel (at [22] and [24]), which were part of the reasoning process in the IAA leading to its findings (at [26]) where it said:

   26. Country information indicates that around this time returnees including refugees and IDPs were of interest to the military, police and CID and were subject to registration, home visits and monitoring [FN: UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 1 December 2012, CIS29707 p 7-8; DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 p13 at 3.37 and 5.25]. I accept that in the 2012 post-war environment, the authorities feared an LTTE resurgence I accept they treated the applicant, a Tamil rehabilitee from a former LTTE controlled area who had travelled to West Africa and returned with IOM with some suspicion. However, the applicant’s passport was arranged by the army, I have not accepted he was still subject to reporting or was of adverse interest to them when he departed and he has provided differing accounts of his travel experience, including omitting any mention of this incident until the SHEV interview. Additionally, given the lengths the applicant claims he went to avoid authorities and that he claims he genuinely went with the intention to work, I find his claim that he readily admitted to the officers that he had travelled overseas because of his problems with the authorities to be implausible. While I accept the applicant was questioned at the airport upon return, I do not accept he was hit and detained overnight.

2. It was open to the IAA to reach the conclusions that it did on the evidence before it:  The IAA found a number of changed circumstances.  It does not appear to have been illogical or irrational to make the findings it did having regard to the intervening events.  It was not in my view legally unreasonable.

Ground 3(d)

1. Particular (d) is a catchall ground simply referring to previous grounds, which have already been addressed.

Ground 4

1. Ground 4 is framed in the following terms:

   4. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

   Particulars

   a. The Authority's findings that the Applicant would have no real chance of suffering serious harm or no real chance of suffering significant harm during the period after his future return to Sri Lanka, and its not accepting that the Applicant had been hit or suffered serious harm when he was detained overnight on his return from Africa in 2012, given its finding that they treated him with some suspicion. (CB 255-256, [26]), indicate that the Authority was not correctly interpreting or applying the terms "real chance" of serious harm and "real risk" of significant harm.

2. This ground, in substance, appears to be a merits review ground reframed as a claim that the IAA did not correctly understand the terms of the provisions requiring it to consider whether or not there was a real chance or a real risk to the applicant in light of the outcome of the decision. 

3. For the reasons set out above, I am not persuaded that the findings of facts made by the IAA were not open to it, nor that the conclusion reached by the IAA based upon the findings of facts that it made indicates any error in understanding the relevant provisions and tests under the Act.

Conclusion

1. In conclusion, in the circumstances I therefore refuse the application. 

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  12 December 2018