DYC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 566
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 566
File number(s): MLG 1909 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 13 July 2022 Catchwords: MIGRATION – Immigration Assessment Authority – Protection visa – Whether Authority failed to consider relevant consideration – whether Authority erred in interpreting or applying the law – whether Authority decision was unreasonable. Legislation: Migration Act 1958 (Cth) ss 36, 473CB, 473DB, 473DC, 473DD Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Abebe v The Commonwealth (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
AXT19 v Minister for Home Affairs [2020] FCAFC 32
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
TTY167 v Republic of Naru [2018] HCA 61Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 10 June 2022 Date of hearing: 10 June 2022 Place: Parramatta Counsel for the Applicant: Mr Krohn Counsel for the First Respondent: Mr Barrington ORDERS
MLG 1909 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
13 JULY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $7,853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDG HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Sri Lanka. The applicant arrived in Australia on 8 September 2012 as an unauthorised maritime arrival. On 27 June 2016, the applicant applied for a Safe Haven Enterprise (Protection) visa (“Protection visa”). On 14 February 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.
The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 15 August 2017, the Authority affirmed the delegate’s decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
Given the grounds of judicial review set out below, the Court does not propose to summarise the Authority’s decision. Rather, in dealing with each of the relevant particulars set out in the grounds of judicial review, the Court will focus on the relevant evidence and findings contained within the Authority’s decision.
It is to be noted that there is a formatting error in the Authority’s decision. The decision starts with paragraphs [1]-[15], however, page 5 of the decision reverts to paragraph [1] again and then continues through to [28]. For ease of precise identification of the relevant paragraph, this judgement will refer to paragraphs as, for example [2.1] meaning the first set of paragraphs or [2.2] as the second set of paragraphs.
GROUNDS OF JUDICIAL REVIEW
In an Amended Application filed with the Court on 17 May 2022, the applicant relies upon the following grounds:
1. The Second Respondent (“the Authority”) fell into jurisdictional error in failing to consider relevant considerations.
Particulars
(a)The Authority noted but did not to determine the Applicant’s claim “that from 2007 to 2012 he would be questioned by the Sri Lankan Navy about whether he helped the LTTE and whether he still had links to the LTTE even though the war had ended.” (Transcript of delegates interview, pp. 21-22; CB 145, [1]).
(b)The Authority did not consider and determine the applicant’s claim that he had a number of times been detained by the CID. (CB 132)
(c)The Authority did not consider and determine the Applicant’s claim that the CID might get further evidence about him “as to my involvement in the LTTE in the past” (CB 132).
(d)The Authority did not consider and determine the claim made by the Applicant on the basis of information from his wife that “Tamils continue to be kidnapped by Sri Lankan authorities.” (CB 81, [10])
(e)The Authority failed to consider with an actual intellectual engagement the question whether the Applicant had a real chance of suffering persecution or significant harm of torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka. The question was squarely raised by the Applicant’s evidence, his submissions, and the findings of the Second Respondent. (CB 81, [12]; CB 133-135; CB 149-151, [15]-[21]; CB 152, [26]-[27])
2. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a)The Authority did not seek new information under section 473DC of the Migration Act 1958 (“the Act”) about matters where it did not have information necessary for the review, namely the new claims and information given to the Authority after the delegate’s decision and which therefore had not been explored in the delegate at interview, namely:
(i)the new claim of the Applicant that his father in 2017 sought the assistance of an agent for the Applicant to return to Sri Lanka after the decision of the Minister’s delegate. (CB 131-132; CB 146, [6]-[7]).
(ii)and the new claimed the agent engaged by his father in 2017 had been detained along with the Applicant’s brother and a friend of his brother, that the agent had been tortured and that the Applicant’s brother had disappeared, and the CID had threatened the Applicant’s father, saying they knew that the Applicant had transported arms and food and cadres for the LTTE. (CB 131-132; CB 146, [8]-[9].
3. The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
(a)The Authority accepted that members of the Applicant’s family were members of the LTTE, and accepted that the applicant was targeted and beaten as a result of Tamil ethnicity and returning from fishing past curfew imposed on Tamil fishermen but did not accept that he was singled out as a result of familial connection with the LTTE. Such finding was illogical and irrational reasoning and was not supported by evidence. (CB 143, [10]; (CB 149 [14]) (Reference to Minister for Immigration and Citizenship –V- SZMDS [2010] HCA 16).
(b)The Authority accepted that the police visited the Applicant’s wife after the Applicant left Sri Lanka in 2012 (CB 81, [7]; CB 146, [4]) The Authority did not have a logical probative basis for rejecting the claim that they did so in 2015. (CB 81, [9]; CB 146, [5]).
(c)The Authority accepted the Applicant had returned to Sri Lanka in 2006 and was able to pass through immigration with the assistant of an agent. It was unreasonable in rejecting the new claim of the Applicant that his father in 2017 sought the assistance of an agent for the applicant to return to Sri Lanka after the decision of the Minister’s delegate (CB 131-132; CB 146, [6]-[7]).
(d)Further in the alternative to Particular (a)(i) to Ground 2 and Particular (c) to this Ground and, the Authority was unreasonable in not seeking any further information from the applicant pursuant to section 473DC of the Migration Act 1958 (“the Act”), at interview or otherwise, about the claim the Applicant set out in those Particulars. (CB 131-132, CB 141, [5]; CB 146, [6]-[7])
(e)Further or in the alternative to Particulars (c) and (d) to this Ground, the Authority was unreasonable in rejecting the claim of the applicant set out in those Particulars, when this was a claim which the Authority accepted could not have been made before the delegate’s decision, and accepted that there were exceptional circumstances to consider the claim, but there was no oral evidence before the Authority about this claim and the Authority had not sought any further information from the Applicant pursuant to section 473DC of the Act, at interview or otherwise, about the aspects of this claim which it thought were problematic. (CB 131-132, CB 141, [5]; CB 146, [6]-[7])
(f)The Authority had no logically probative basis to reject the Applicant’s claim that the agent engaged by his father in 2017 had been detained along with the Applicant’s brother and a friend of his brother, that the agent had been tortured and that the Applicant’s brother had disappeared, and that the CID had threatened the Applicant’s father, saying they knew the applicant had transported arms and food and cadre for the LTTE. (CB 131-132; CB 146, [8]-[9]).
(g)Further or in the alternative to Particular (a)(ii) to ground 2 and Particular (f) and (g) to this Ground, the Authority was unreasonable in not seeking any further information from the Applicant pursuant to section 473DC of the Act, at interview or otherwise, about the claim of the Applicant mentioned in those Particulars. (CB 131-132; CB 141, [5]; CB 146, [8]-[9])
(h)Further or in the alternative to particulars (f) and (g) to this ground, the Authority was unreasonable in rejecting the claim of the applicant mentioned in those Particulars when it had accepted that there were exceptional circumstances to consider the claim, but there was no oral evidence before the Authority about this claim and the Authority had not sought any further information from the Applicant pursuant to section 473DC of the Act, at interview or otherwise, about aspects of the claim which it thought were problematic. (CB 131-132; CB 141, [5]; CB 146, [8]-[9]).
(i)Not pressed.
(j)It was not reasonable for the authority not to find that the Applicant was at risk of persecution or significant harm in detention or in prison on his return, giving the material before it relating to abuse of human rights and torture. (CB 81, [12]; CB 133-135; CB 149-151, [15]-[21]; CB 152, [26]-[27])
CONSIDERATION
As noted by the first respondent, the grounds of judicial review contain particulars that are tantamount themselves to individual grounds of judicial review and seek to impugn nearly every paragraph of the Authority’s reasons. Some grounds are repetitive of each other. The Full Federal Court has reiterated on multiple occasions that the Authority’s reasons are not to be read “with an eye keenly attuned to error”: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46] (“Applicant WAEE”)). Notwithstanding this, the applicant’s grounds consist of a forensic approach in minute detail to the Authority’s decision.
The grounds are a scattergun approach, in that by pleading every possible matter, it is hoped that the Court might find one issue that has merit. The Court has a reasonable expectation that Counsel should be able to focus their attention on those matters which have merit rather than simply pleading every possible matter.
Such an approach, of necessity, requires the Court to undertake a very detailed examination of each individual finding by the Authority. Such an approach has the considerable danger of implicitly requiring the Court to undertake impermissible merits review, rather than exercising a supervisory role that involves a consideration of jurisdictional error.
Prior to commencing the task of examining the grounds pleaded, it is appropriate to set out a number of guiding principles that are well accepted.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court in conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: (see; Abebe v The Commonwealth (1999) 197 CLR 510 at [187]).
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).
Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: (see; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]).
It is well settled that the country information, and the weight that the Authority gives to that information, is a matter for the Authority: (see; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] (“NAHI”)).
There is no general obligation on the Authority to investigate an applicant’s claims: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). The duty imposed on the Authority by the Migration Act 1958 (Cth) (“the Act”) is a duty of review, not a duty to inquire: (see; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] (“SZIAI”)). Jurisdictional error may exist where the Authority fails to make an obvious enquiry about a critical fact, the existence of which is easily ascertained.
Reasons of a Tribunal or the Authority are not to be scrutinised “with an eye finely attuned to error”. It is plainly not necessary for the Tribunal or Authority to refer to every piece of evidence and every contention made by an applicant in its written reasons. Nor is the Authority necessarily required to provide reasons of the kind that might be expected of a Court of law: (see; Applicant WAEE at [46]). Further, at [47] the Court said as follows:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Ground 1 is an allegation that the Authority failed to consider relevant considerations or, as noted in the Applicant’s written submissions, actively intellectually engage with the pleaded particulars. Again, it is important to for the Court to remind itself that the Authority is not required to refer to every piece of evidence and contention. A failure to expressly deal with an issue will not constitute jurisdictional error where the reasons are otherwise comprehensive and the issue has been at least identified at some point and would not be dispositive of the matter.
Particular 1(a) asserts that the Authority did not determine the claim that from 2007 to 2012, that the applicant was questioned by the Sri Lankan Navy (“SLN”) about whether he helped the Liberation Tamil Tigers Eelam (“LTTE”) and still had links to the LTTE. Counsel for the applicant concedes that the claim was noted by the Authority at paragraph [6.1]. The Authority stated:
Depending upon the fishing season he would go out to sea at different times in the morning and was required to return to shore before 6pm daily. On several occasions he returned late he was interrogated by the Sri Lankan navy and beaten. The Sri Lankan Navy accused him of assisting the LTTE. He was treated differently possibly because of his familial connections with former LTTE cadres.
At paragraph [15.1] of the decision record, the Authority found that the applicant “had a threatening presence in the applicant’s home area”. The Authority found that Tamils were “harassed, arrested and/or detained” by the SLN. However, the Authority went on to find that:
On the available country information, I do not accept the applicant’s claim that he was singled out and treated differently as a result of his familial connections with former LTTE cadres or that he was singled out from other Tamil fishermen when he returned past curfew from fishing but that all Tamil fishermen were subject to harassment and intimidation. On evaluation of the country information, I find he was targeted as a result of this Tamil ethnicity and returning from fishing past the curfew imposed on Tamil fishermen.
The first respondent submitted that it was necessary to consider the claim in its context. A review of the applicant’s interview before the delegate indicates that the applicant’s claims to have been questioned by the SLN and about his links to the LTTE arose in the context of his fishing activities. Further, the claim was only made once, at the oral interview and was not repeated at any other point.
The claim was expressly averted to by the Authority at [1.2]. This shows that the Authority had read, identified, understood and evaluated the claim. As the majority the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24] (M1) stated (citations omitted):
Consistently with well-established authority in different statutory context, they can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour was then) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who was making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by former a visa holder. (emphasis added).
Further, the Authority’s conclusion should be read as a rejection of the assertion. At [6.2] of the decision record, the Authority accepted that the applicant suffered discrimination during the conflict. But at [5.2] of the decision record, the Authority stated it was “not satisfied that the Sri Lankan Authorities or anyone else for that matter were interested in him some three years after he left Sri Lanka and nine years after he had any credible personal altercations with them”.
The Court is satisfied that the Authority properly identified the applicant’s claim about fears due to his interactions with the SLN but rejected them. Further, the Court is not satisfied that there was a failure to consider an essential integer to the applicant’s claim in this regard or one that was dispositive of review. The Court agrees with the submission by the first respondent that the Authority’s obligation to give reasons does not require a “line by line refutation of the evidence”. The Authority must give reasons for its decisions, “not the sub-set of reasons why it accepted or rejected individual pieces of evidence”: (see; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48]). The finding at [5.2] set out above was open to the Authority based on the evidence that was before it and for the reasons it gave. Ground 1(a) has no merit.
Ground 1(b) is a claim that the Authority did not consider and determine the applicant’s claims that he had a number of times been detained by the CID. Counsel for the applicant submits that this needs to be considered on a similar basis to ground 1(a). The applicant points to Court Book page 132 where the applicant had said
The DIBP accepted that my family members were forcibly recruited to the LTTE, but failed to recognise the danger and the fear I face and have on my return as I had been arrested by the CID and Navy many times in the past.
Counsel for the first respondent conceded that in this passage, the applicant claimed he had been arrested “many times in the past”, but the claim was contrary to all of the applicant’s earlier claims. For example, at Court Book page 107, the delegate noted that the applicant had never said he was arrested or detained. Further, the claim was a single sentence assertion, totally devoid of any detail.
Counsel for the first respondent relied on the following passage from AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]:
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made or advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. (emphasis added).
The Authority made a number of findings in which it was not satisfied that Sri Lankan authorities or anyone else for that matter were interested in the applicant. For example, at paragraph [5.2] of the decision record the Authority accepted that both the applicant and M were questioned in 2012, however the Authority did not find that this was as a result of any perceived support of familial ties to the LTTE. The Authority noted at paragraph [6.2] that the applicant was able to leave Sri Lanka and return three times without incident, with the last time being in 2006. The Authority was not satisfied that the applicant was on a “watch list” and that he would attract attention if he were to return to Sri Lanka.
At paragraph [14.2] of the decision record, the Authority found that, even accepting that the applicant’s family were involved in the LTTE in the 1980s and 1990s, it was not satisfied this would lead to any adverse consequences for the applicant. At his interview, the applicant indicated the main reason he fears returning to Sri Lanka were due to is Tamil ethnicity, that he had left illegally and his familial link. Even accepting that the applicant was beaten and harassed on several occasions by the SLN, the Authority was of a view, given the improved security conditions in Sri Lanka since his departure that he did not face serious harm amounting to persecution on return. The Authority was not satisfied the applicant had a profile now or in the reasonably foreseeable future that would link him to the LTTE.
The Court is satisfied that this claim was properly identified, considered, and rejected for the reasons set out above. The Court is satisfied that his claimed to fear harm from the Criminal Investigation Department (“CID”) “due to being arrested many times” was dealt with in findings of greater generality. Ground 1(b) has no merit.
Ground 1(c) complains that the Authority did not consider the applicant’s claim that the CID might get further evidence about him “as to my involvement in the LTTE in the past”. On behalf of the applicant, it was submitted the claim invited consideration of the probability of an event which the Authority may have found could exist (emphasis added). The Court notes that this does not suggest the issue would have been dispositive of the matter or have realistically affected the outcome.
On behalf of the first respondent, it was submitted that the claim did not clearly arise on the materials. The applicant clearly claimed in his evidence to the delegate “I wasn’t in the LTTE”. In those circumstances, the claim was obscure and the Authority was not required to consider it.
The basis upon which the Authority could have considered a claim of evidence about “involvement in the LTTE in the past”, given the applicant denied involvement, has not been explained. It was for the applicant to present the evidence that he relied upon to show he was entitled to a Protection visa. No such evidence was given at any point. Further, the Authority was not under any duty to investigate the claim. Given the Authority’s other factual findings that the applicant did not have an adverse profile with Sri Lankan Authorities, the Court is satisfied the claim was dealt with by findings of greater generality. If anything, the claim by the applicant amounted to nothing more than mere speculation on the part of the applicant that did not require a specific finding by the Authority.
Particular 1(d) asserts that the Authority did not consider and make a specific finding on the claim that the applicant received information from his wife that “Tamils continue to be kidnapped by Sri Lankan authorities”. On behalf of the applicant it was submitted that, while the claim was without reference to specific examples, it was a serious and concrete claim on a material question of fact and the failure to determine may have affected the review (emphasis added). Again, it is not submitted the claim would have been dispositive of the applicant’s claims or that it could have realistically changed the outcome.
The first respondent submitted the applicant’s assertion that the claim was without specific examples is unclear. In making the claim that Tamils continue to be arrested, the applicant went on to give an example at (Court Book page 81 at [10]):
For example, my wife told me that two months ago a Tamil was kidnapped from M, which is a district within the Tamil area which is only about a four hour drive from V. My wife communicated to me that this Tamil family had connections with the LTTE.
Thus, the example given by the applicant links the arrest with LTTE connections, not a general claim in relation to Tamils. At paragraph [12.2] of the decision record, the Authority considered the situation of Tamils more generally, noting Department of Foreign Affairs and Trade (“DFAT”) advice that the situation has improved. Further, at [21.2] of the decision record, the Authority noted the key risk factor was a certain actual or perceived link to the LTTE, merely being a Tamil or a Tamil from the east was not enough to give rise to a real chance of harm on return.
There can be no doubt that the Authority considered the risks posed to Tamils generally. Paragraphs [12.2] to [15.2] of the Authority’s decision consist of a recitation of country information, including a discussion of the risks to Tamils generally and the risk to the applicant. Paragraph [21.2] finds that the applicant is not at risk merely by being a Tamil. The Court is satisfied that this finding is a finding of greater generality, noting that the claim was clearly identified at paragraph [6.1] and then discussed at [5.2] and dismissed by the Authority. Particular 1(d) has no merit.
Particular 1(e) submits that the Authority did not engage in an active intellectual consideration of the claim the applicant upon return, while in detention under the control of Sri Lankan Authorities, would suffer persecution or torture or serious or significant harm.
The applicant claims that the Authority failed to properly consider various country information including some differences between a United Nations High Commissioner for Refugees (“UNHCR”) report and DFAT country information. The Court was taken to the DFAT country information report of January 2017 which stated at paragraph as follows:
4.15 … The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there was a perceived threat to national security.
4.18 DFAT assesses that torture and Sri Lanka, perpetrated by either the military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assesses that the risk of torture from the military and intelligence forces has decreased since the end of the civil conflict.
4.21 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
4.22 … Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act.
The applicant submitted that there was enough material before the Authority to squarely raise the question of whether the applicant might suffer ill-treatment precisely as a person detained, in a country with a sad and long history of torture and other abuses. The Authority did not consider the question in relation to the assessment of the claim to be a refugee, and did not grapple with the important divisions in assessments between DFAT and the UNHCR as noted by DFAT itself and quoted above. It was submitted that the Authority failed to consider whether the applicant had a real chance of suffering serious or significant harm while in detention upon his return as an illegal immigrant when this was clearly raised on the material before it. This question related to both protection as a refugee under s 36(2)(a) and the complimentary protection under s 36(2)(aa) of the Act.
On behalf of the first respondent, it was submitted the suggestion that the Authority “did not grapple with important divisions in assessments between DFAT and the UNHCR rose little higher than an impermissible attempt at merits review. Both the choice and assessment of the weight of country information were matters for the Authority: (see; NAHI at [13]).
In any event, it was submitted the Authority did consider this at [19.2]. The Authority found that the conditions in prison, for a short period, did not rise to the level of serious harm for the purposes of the Act. At [21.2] of the decision record, the Authority considered reports of failed Tamil asylum seekers being mistreated and tortured, but noted the key risk was links to the LTTE. Being a failed asylum seeker alone was not enough to give rise to real chance of harm on return.
In the Court’s view, the consideration by the Authority of the claim to fear harm on return as a failed asylum seeker was entirely orthodox. This is not a situation whereby the applicant was to be the subject of a discrete criminal investigation upon return, as compared to being detained for illegally leaving Sri Lanka.
The Court is satisfied that the consideration in paragraphs [15.2] to [21.2] of the Authority’s decision was comprehensive and covered the issues of concern in this particular. Further, the issue was again visited at paragraphs [26.2-[28.2] of the Authority’s decision in relation to complimentary protection and, for the same reasons, the Authority found that the process the applicant would face upon return did not amount to either significant harm or that he would face torture, cruel or inhuman treatment, or punishment, or degrading treatment or punishment as a result of the conditions he may face during a short period in custody.
In these circumstances, the assertion by the applicant that the claim was not the subject of an active intellectual process, simply cannot be sustained. The Authority had identified the real risk was the applicant’s perceived or actual links to the LTTE. The Authority had found that the applicant was of no interest to Sri Lankan authorities. On the consideration of all of the information that was available to the Authority, the conclusion that the applicant was not at risk upon return was open to it on the evidence available and for the reasons the Authority gave. Particular 1(e) has no merit.
Ground two is an assertion the Authority fell into jurisdictional error in that it erred in interpreting or applying the law. The complaint centres on the Authority not seeking new information under s 473DC of the Act in relation to the claim that by the applicant that his father in 2017 sought the assistance of an agent for the applicant to return to Sri Lanka and that the claim that the agent engaged by his father in 2017 had been detained, along with the applicant’s brother and a friend of the brother, that the agent had been tortured, the applicant’s brother had disappeared, and the CID had threatened the applicant’s father saying that they knew the applicant had transported arms, food and cadre for the LTTE.
These claims are discussed comprehensively by the Authority at paragraphs [6.2]–[9.2] of the decision record. The Authority noted it had ‘considerable concerns’ as to these new claims. The Authority was satisfied the applicant was not on a ‘watch list’ that would attract attention if he returned to Sri Lanka. Further, it was not logical that the applicant would need the assistance of an agent to return to Sri Lanka some eight years after the conflict had ended: (see; para [6.2] of the Authority’s decision). As to the claim that the agent had been tortured and the brother had disappeared, the Authority found these claims ‘farfetched’ and had been fabricated: (see; paragraph [8.2] of the Authority’s decision).
On behalf of the applicant, it was submitted that it was legally unreasonable not to have sought new information under s 473DC of the Act given these claims had not been explored at the delegate’s interview. There was no objective or reliable evidence to assess the credibility of the applicant given these claims were not heard by the delegate.
On behalf of the first respondent, it was submitted that there was no “informational gap” of the type discussed in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439. In that case, at [13], the High Court found that the informational gap that was missing from the review material was “a visual impression of how the referred applicant appeared during the interview – his or her demeanour”. In the present case, the Authority’s conclusions on the new material were not made on the basis of demeanour, nor was the Authority required to decide the case on a different substantive basis to the delegate. The ground in effect reduces down to little more than a contention the Authority should have exercise its power to get new information in order for the applicant to have an opportunity to make a fuller or better case. The contention should be rejected.
This review was conducted under Part 7AA of the Act. This part considerably restricts the range of information which is available to the authority for consideration. Firstly, pursuant to s 473DB, subject to s 473CB of the Act, the Authority is required to conduct its review on the papers, without accepting or requesting new information and without interviewing the referred applicant.
Section 473DC(2) of the Act states that the Authority does not have a duty to get, request, or accept any new information where the Authority is requested to do so by the referred applicant or by any other person or in any other circumstances. It is to be noted that it is not suggested by Counsel for the applicant that any request was made to the Authority for the applicant to be interviewed or any other person, including the applicant’s father, be interviewed or asked to provide a statement. The claim by the applicant that further information should have been sought appears to have arisen post the hearing, and after the publication of the Authority’s reasons for rejecting these particular claims. In these circumstances, it is difficult to see how a claim of legal unreasonableness could be sustained.
Jurisdictional error may occur where the Authority fails to make an obvious enquiry about a critical fact, the existence of which is easily obtained: (see; SZIAI at [25]). No such failure is identified by the applicant. The assertion that it was incumbent on the Authority to obtain oral evidence from the applicant must be rejected. It was for the applicant to put all evidence that he sought to rely upon to the Authority. It was the role of the Authority to review that material. There is no duty of the Authority to make enquiries to allow the applicant an opportunity to present a fuller or better case: (see; TTY167 v Republic of Naru [2018] HCA 61 at [24]).
Ground three is a broad assertion of jurisdictional error with nine particulars, based on legal unreasonableness or the making of findings that did not have a logical or probative basis.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28] (“Li”), or where a decision has been made that lacks an “evident and intelligible justification”: (see; Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Li at [30], [113]). Illogicality or irrationality are subsets of legal unreasonableness.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient that different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
On behalf of the applicant, it was submitted the obligation on the Authority to act reasonably extends not only to its final decision, but how it conducts the review. It was submitted all that was needed to be established was a real chance of persecution or a real risk of significant harm. A real chance is one that is not remote, regardless of whether it is less or more than 50%: (see; Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 at [19] per Dawson J). It was submitted that Parliament intended for the Authority to find the applicant met the requirements for protection if there was a small but real chance of suffering harm.
Particular 3(a) asserts that the Authority accepted that the applicant was targeted and beaten as a result of Tamil ethnicity and returning from fishing past curfew, but did not accept that he was singled out as a result of the familial connection with the LTTE. It was submitted that such a finding was illogical, irrational and was not supported by the evidence that the Authority had accepted, including that some notable members of the LTTE were among the applicant’s relatives and that he had been fired upon by the SLN.
On behalf of the first respondent, it was submitted that at paragraph [15.1] of the decision record, the Authority had regard to country information that fishermen were beaten by the SLN for having gone fishing without permission in waters controlled by the SLN. The Authority did not accept that the applicant was “singled out and treated differently as a result of his familial connections with former LTTE Cadre or that he was singled out from other Tamil fishermen when he returned past curfew”. The Authority found, on the available country information, that the applicant was targeted as a result of this Tamil ethnicity and returning from fishing past curfew. It was submitted that the reasoning disclosed an evident and intelligible justification for the finding: (see; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [10], [82]).
The Court is satisfied that this finding was open to the Authority based on the material that was before it and for the reasons it gave. It does not meet the stringent requirements for legal unreasonableness and had an evident and intelligible justification. The ground simply invites the Court to undertake impermissible merits review.
Particular 3(b) claims the Authority accepted that police visited the applicant’s wife after the applicant left Sri Lanka in 2012. The Authority did not have a logically probative basis for rejecting the claim the police visited the applicant’s wife and 2015.
On behalf of the applicant, it was submitted that there was no probative basis for this finding, other than its assumption that the effluxion of time meant this could not have happened in 2015. Such an assumption disregards whether it was possible (as the applicant claimed) that he might be in danger if Sri Lankan authorities got new information.
On behalf of the first respondent, it was submitted first that the effluxion of time was a logically probative reason to reject the claim. The Authority had found that the applicant left Sri Lanka some three years earlier, in 2012, and had not had any credible personal altercations with Sri Lankan authorities in nine years prior to that. Second, the applicant’s submissions overlooked the fact that the Authority had found that it was “not satisfied the police had any interest in the applicant” at paragraph [5.2] of the Authority’s decision.
It’s important to note that the applicant at all times claimed that he had no involvement with the LTTE. The applicant only described himself as having a familial connection with the LTTE. The Authority had also found that the applicant had been able to leave Sri Lanka and return, without difficulty, on three previous occasions prior to him leaving for Australia in 2012. The Authority found that this was consistent with Sri Lankan authorities not having any interest in the applicant.
In these circumstances, it is difficult to see how Sri Lankan authorities might have found a new information on the applicant which would put him at risk on return. The Court is satisfied there was a logical and probative basis for the Authority to come to the conclusions it did based on the evidence that was before it and for the reasons it gave. The applicant’s contention fails to meet the stringent requirements the legal unreasonableness or illogicality or irrationality. Particular 3(b) has no merit.
Particular 3(c) asserts that the applicant had returned to Sri Lanka in 2006 and was able to pass through immigration with the assistance of an agent. The Authority was unreasonable in rejecting the new claim of the applicant that his father had sought assistance of an agent for the applicant to return to Sri Lanka after the decision of the delegate. It was submitted that the Authority was obliged to refer to evidence on which its findings on material questions of fact were made, but offered no reference to evidence as a basis for the rejection of this claim.
On behalf of the first respondent, it was submitted that the Authority gave cogent reasons for rejecting this new claim at paragraph [6.2] of its decision. The Authority found that the applicant had been of no interest to Sri Lankan authorities or anyone else and that he was not on a “watch list” and that the war had ended some years earlier. The Authority also did not accept that the applicant’s father would retain an agent by travelling to a different town.
Again, the Court is satisfied that this finding was open to the Authority on the evidence before it and the reasons it gave. The Authority was entitled to be sceptical that the applicant’s father would travel to a different town to arrange an agent to assist the applicant in entering Sri Lanka. Further, given the applicant had at all times admitted that he had left Sri Lanka illegally, no logical explanation is provided as to what difference an agent would make, bearing in mind country information indicated that the applicant would be detained at the airport and placed before a Magistrate charged with leaving Sri Lanka illegally. Particular 3(c) has no merit.
Particular 3(d) asserts, in the alternative to particular 2(a)(i) and 3(c), that the Authority was unreasonable in not seeking any further information from the applicant pursuant to s 473DC of the Act. It was submitted that there was an informational gap relating to this claim, as it had not been made before the delegate, and that in not seeking further information the Authority was unreasonable. On behalf of the first respondent, it was submitted that this ground should be dismissed for the same reasons and ground two. There was no informational gap as contended by the applicant.
This particular is merely a variation of ground 2. Rather than being separately pleaded, it should have been pleaded, if at all, as part of ground 2. The Court agrees with the submissions of the first respondent that, for the same reasons as set out above, this particular has no merit.
Particular 3(e) as very difficult to understand. It asserts that in relation to particulars 3(c) and 3(d) it was unreasonable to reject the applicant’s claims in circumstances where there was no oral evidence before the Authority concerning the claim and the Authority had not sought any further information from the applicant pursuant to s 473DC of the Act.
On behalf of the first respondent, it was submitted to the extent that the applicant’s complaint is that it was unreasonable to reject information it had found exceptional circumstances existed to consider, the Authority is not plainly required to accept all claims simply because they pass through the filtering mechanism in s 474DD of the Act.
Firstly, for the reasons set out above, the Court is satisfied there was no requirement on the Authority, nor was it legally unreasonable for the Authority not to seek further information by way of oral evidence from the applicant pursuant to s 473DC of the Act. Further, the Court accepts the submission of the first respondent, that merely by receiving new evidence pursuant to s 473DD of the Act, this creates no requirement on the Authority to accept that evidence. Having received the evidence, the Authority was properly entitled to consider that evidence and either accept or reject it based on its merits. Particular 3(e) has no merit.
Particular 3(f) asserts there is no logical probative basis to reject the applicant’s claims that the agent engaged by his father in 2017 had been detained along with his brother, the agent had been tortured, and the applicant brother had disappeared. Further, the CID had threatened the applicant’s father, saying the applicant had transported arms, food and Cadre for the LTTE. The applicant makes a bland submission that there is simply no evidentiary foundation for the finding and it was therefore unreasonable.
On behalf the first respondent, it was submitted the applicant’s contention should be rejected. The Authority set out clear reasons for rejecting the applicant’s claim. At paragraph [8.2] of the decision record, the Authority found the claims to be ‘farfetched’. The Authority found that neither the applicant nor any member of his immediate family were supporters of the LTTE. Further, DFAT assessed that the LTTE no longer existed as an organised force in Sri Lanka. High profile individuals with links to the LTTE may continue to be of interest to Sri Lankan authorities and may be subject to monitoring, however the Authority was not satisfied that the applicant or his brother would fall into this category.
The Authority is not required to uncritically accept any or all claims made by an applicant. Further, the Authority is not required to have rebutting evidence before holding that a particular assertion is not made out: (see; AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]).
The Court is satisfied that these findings were reasonably open to the Authority on the basis of the evidence that was before it and for the reasons it gave. The contention does not meet the stringent grounds for legal unreasonableness, illogicality or irrationality. Ground 3(f) has no merit.
Particular 3(g) merely repeats the allegations made in ground two. For the same reasons it has no merit.
Particular 3(h) is a variation on the claim that the Authority should have obtained further information from the applicant, pursuant to s 473DC of the Act, about aspects of his claim that were thought to be problematic. On behalf of the first respondent, it was submitted that this ground merely asserted that the Authority is bound, acting reasonably, to have accepted the claim which are passed: (see; s 473DD of the Act). For the reasons set out above, there was no obligation on the Authority to obtain new information, nor was it legally unreasonable not to do so. The Court agrees with the submission of the first respondent that, in accepting new information under s 473DD of the Act, it creates no more obligation on the Authority than to consider that information, not an obligation to accept it. Particular 3(h) has no merit.
Particular 3(i) was not pressed.
Particular 3(j) alleges that it was not reasonable for the Authority to not find that the applicant was at risk of persecution or significant harm in detention or on his return, given the material before it, relating to the abuse of human rights or torture.
On behalf of the applicant it was submitted that while the Authority had decisional freedom, it was not open to the Authority to dismiss a real chance of harm, even briefly, while in detention. Further, it could not be disregarded that a fresh investigation may reveal old suspicions of the Applicant as a supporter or being otherwise involved with the LTTE. Finally, it could not reasonably be discounted that the fact that the applicant would be in detention may expose him to the real risk of harm.
On behalf of the first respondent it was submitted that this claim was specifically dealt with at paragraph [16] of the decision record, where the Authority said: “I find that the authorities will quickly establish that he is not of interest for any reason”.
The fact that the applicant would be held in detention for a short period upon return as an illegal departee, was discussed extensively by the Authority at paragraphs 16 to 21 of the decision record, with reference to relevant country information. The Authority noted at paragraph 21 of its decision:
“…the key risk factor is whether a Tamil had certain actual or perceived links to the LTTE. Merely being a Tamil, or a Tamil from the east, or being a failed asylum seeker was not enough to give rise to a real chance of harm.”
The above statement was extensively referenced to a variety of country information not just DFAT country information. The Authority had previously found, at paragraph 16 of the Authority decision, that the applicant had never previously been charged, convicted or wanted for an offence in Sri Lanka, that he had no identity concerns, or criminal or security issues that would raise the concerns of authorities.
The Court is satisfied the impugned finding was open to the Authority based on the evidence before it and for the reasons it gave. There is nothing unreasonable, illogical or irrational in these findings. They draw on relevant country information to make conclusions based on the previous findings as to the claims of the applicant and his evidence. The findings do not meet the stringent test for unreasonableness. Particular 3(j) has no merit.
CONCLUSION
As none of the pleaded grounds have merit, the application must be dismissed
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 13 July 2022
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