Ebd16 v Minister for Immigration and Border Protection
[2021] FCCA 1176
•1 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EBD16 v Minister for Immigration and Border Protection [2021] FCCA 1176
File number(s): MLG 2808 of 2016 Judgment of: JUDGE RILEY Date of judgment: 1 June 2021 Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority considered the applicant’s disability – whether the Authority was obliged to consider the applicant’s status as human rights complainant – whether the Authority’s decision was irrational. Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
SZWCO v Minister for Immigration and Border Protection [2016] FCA 51
Number of paragraphs: 66 Date of hearing: 3 May 2021 Place: Melbourne Counsel for the Applicant: Joe Tito Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Andrew Yuile Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: Mills Oakley ORDERS
MLG 2808 of 2016 BETWEEN: EBD16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSEMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
1 JUNE 2021
THE COURT ORDERS THAT:
1.The application filed on 22 December 2016 and amended on 18 December 2020 be dismissed.
2.The applicant pay the first respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”). In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).
BACKGROUND
The applicant’s written submissions filed on 20 April 2021 provided the following background to the matter:
1.1The Applicant is a citizen of Sri Lanka and was born there on … 1975. He is of Tamil ethnicity and Catholic faith. He is deaf and understands oral communication by lip reading.
1.2The Applicant arrived in Australia on 14 August 2012. On 16 January 2013 he participated in an entry interview with the Department of Immigration and Citizenship. On 15 March September 2016, he applied for a Safe Haven Enterprise visa (SHEV). He attended an interview before a delegate of the First Respondent (the Delegate) on 4 August 2016. On 20 September 2016, the Delegate refused his application. On 26 September 2016, the proceeding was referred to the Immigration Assessment Authority (the Authority). On 9 December 2016, the Authority affirmed the Delegate’s decision.
(footnotes omitted)
THE APPLICANT'S CLAIMS
The applicant summarised his claims in his written submissions filed on 20 April 2021 as follows:
1.4The Applicant first articulated his claims in the entry interview and subsequently in two statutory declarations accompanying his SHEV application, which were supported by a birth certificate, his marriage certificate, a letter from Pastor Karen Dey and a record of a complaint he made to the Human Rights Commission of Sri Lanka. Upon referral of the matter to the Authority, the Applicant provided a submission addressing the Delegate’s findings.
1.5The Applicant’s claims arise principally from his religion, ethnicity and disability. Briefly, the factual particulars of his claims are as follows:
i.The Applicant is deaf and understands oral communication by lip reading.
ii.In 1997 he was taken to Point Pedro by the Sri Lankan army (the SLA) on suspicion of being a member of the LTTE, interrogated and harassed. When the SLA realised he had hearing difficulties they let him go.
iii.After he began operating a business selling vegetables, the SLA would harass him whenever they went past the shop. Because he was running a business, they would constantly ask him if he was supporting the LTTE. Sometimes if an SLA officer saw him on the street they would grab him by his shirt and ask if he was a member of the LTTE.
iv.In 2006 he travelled to Malaysia to see if he could live there. He returned to Sri Lanka after two weeks. When he returned the SLA interrogated him about where he had gone. He didn’t tell them he had departed Sri Lanka; he said he had been in Sri Lanka the whole time.
v.In December 2011 an officer of the SLA came to his house and took him to an SLA camp. His wife came with him so she could communicate with them because of his hearing problem. He was accused of supporting the LTTE by supplying goods and money from his business. He was interrogated and beaten about his “activities” and then released after about half an hour after they saw that he could not hear.
vi.SLA officers kept coming into the shop and harassing them, accusing them of working with the LTTE; he was kept under surveillance. He was afraid of what might happen so he stopped working and left only his wife in the shop.
vii.On 2 January 2012 he was kidnapped in a white van and taken to Pallai where he was held for one day, beaten continuously and threatened with a knife. The more he told them that he could not hear what they were saying the more they hit him. He urinated on himself. He was released after paying them the 113,000 rupees that were in his pocket.
viii.The following day his wife made a complaint to the Human Rights Commission of Sri Lanka about his detention and beating but nothing happened.
ix.He feared that he would be abducted again and that next time, he may be tortured or even disappeared, so he decided to leave Sri Lanka and travel by boat to Australia
1.6 His claims in his statutory declarations included that:
i.He believes because he is deaf he is more vulnerable to interrogation, beatings and torture from the army. On the most recent occasion when he told the officers he was deaf it made them beat him more as he did not understand what they were saying and could not do what they asked.
ii.Since being in Australia the army have continued to harass his wife at the shop and ask where he is. In 2013 they went to the family home and asked about him and searched the house. They found his passport and confiscated it. He suspects they have continued to visit but his wife does not tell him as [s]he does not want to worry him.
iii.The authorities cannot protect him. The police did not act when his family complained after he was abducted and the UNHCR did nothing.
1.7The submission of the Applicant’s representative to the Authority summarised the Applicant’s reasons for his fear of persecution and argued that his profile as a Tamil with a hearing impediment would make him stand out as a vulnerable failed asylum seeker.
(Footnotes omitted).
THE AUTHORITY’S REASONS
In paragraph 3 of his written submissions, the Minister summarised the Authority’s reasons for decision as follows:
a.The IAA accepted as plausible that the applicant had been questioned by the Sri Lankan Army (SLA), as “part of a routine round-up of young Tamil men”.
b.The IAA accepted that the applicant had from time to time been harassed by security forces who suspected he may have been providing material or financial support to the LTTE. This finding was made in a context where the “types of incidents described by the applicant are consistent with the monitoring and harassment experienced by many Tamils in the north by security forces at that time”.
c.The IAA was prepared to accept that the applicant had travelled to Malaysia as he claimed, but not that he had been questioned on his return.
d.The IAA accepted that the applicant had been detained by the SLA in 2011. However, it did not accept that he had been kept for a whole day. The IAA found that the applicant had been detained for half an hour, was not beaten in that time and was then let go.
e.The IAA accepted that the applicant was abducted by a “white van” and beaten in January 2012, and that he was let go after he paid his captors 113,000 rupees. However, the IAA found that there was nothing to connect this incident to the earlier questioning by the SLA. The incident was found to be at the hands of “unknown people”. The IAA found that the motive for the abduction was financial; that is, that he was kidnapped for the purpose of extorting money. This was supported by country information to the effect that kidnapping was done on some occasions to make money alone, and by the facts that the applicant was released after giving money to his abductors and no repercussions followed. The possibility of a future kidnapping of the same kind was found to be remote.
f.The IAA did not accept that the applicant had gone into hiding after the white van incident. This followed in part from the applicant’s own statement that he did not do any business between the kidnap incident and his departure from Australia, but made no claim to have moved away or one into hiding. The IAA also did not accept that “each previous time” the SLA had found the applicant they beat him.
g.The IAA did not accept that the applicant had been the victim of physical harm other than during the 2012 kidnapping. The IAA found that the applicant’s claims of physical harm were exaggerated.
h.The IAA accepted as plausible that the SLA had visited the applicant’s home after his departure, in 2013. However, it did not accept that this was “anything other than an instance of routine monitoring of Tamil residents”. There was also no evidence of any incident between the kidnapping in 2012 and the home visit in 2013.
i.The IAA accepted that the applicant’s brothers had been targeted during the war “on the basis that they were young Tamil men”. However, the applicant made no claim that these incidents had any repercussions for him. The IAA did not accept that the applicant was at risk of harm because of the questioning of his brothers.
j.The IAA found generally that “the applicant’s experiences of being questioned and monitored by the authorities during the war and in its immediate aftermath appear to be common to Tamils in the north and east”. However, the situation since the war had significantly changed, with the security situation improving and monitoring decreasing.
k.This led the IAA to conclude that:
Assessing the evidence, overall, I am not satisfied the applicant has a well founded fear of persecution. Apart from the instances which I accept occurred during which the applicant was questioned regarding LTTE support and the instance in 2012 which appears to have been an isolated instance of extortion, the applicant was able to establish and run for over 20 years a successful business selling vegetables and maintain his family as a result of this venture. There is no evidence before me that his business was harmed in the past or that on his return he would be unable to resume his role in that business. Considering the country information and the applicant’s personal circumstances, I am not satisfied there is a real chance the applicant would suffer serious harm on return to Sri Lanka now or in the reasonably foreseeable future on the basis of his ethnicity or imputed political opinion.
l.In respect of the illegal departure claim, the IAA accepted that the applicant would be charged with illegal departure and fined if he pleaded guilty, and released on a surety if he pleaded not guilty. He would not be subject to a custodial sentence, but fined.
m.With respect to the possibility of a brief period of detention and the applicant’s hearing impairment, the IAA noted the representative’s claim that the applicant would stand out as a vulnerable failed asylum seeker, but that no other detail or evidence to support the claim was given. The IAA found that the applicant had “in my view, demonstrated an ability to manage himself and his life notwithstanding his disability and while I accept that sometimes it may take the applicant more time to understand and communicate because of his hearing problem, I do not accept that this puts him at risk of harm.”
n.More generally, based on country information, the IAA appeared to accept a finding of DFAT, that “the risk of torture or mistreatment for the majority of returnees is low including for those suspected of offences under the I&E Act.” While there might be some risk to Tamils with an adverse profile, there was no real chance of harm on return to Sri Lanka for the applicant. The IAA said:
Considering the totality of the treatment that the applicant will experience, that is, questioning by the authorities during investigations at the airport, combined with possible brief detention in overcrowded and unsanitary conditions, and the imposition of a fine, I find that this treatment does not amount to serious harm.
o.The IAA expressly extended this finding to the applicant’s cumulative circumstances and claims, including “as a hearing impaired Tamil businessman who has in the past been questioned about imputed LTTE support and who has been kidnapped for extortion and who will be returning as a failed asylum seeker and illegal departee”.
(Footnotes omitted).
GROUND 1
The first ground of review in the application filed on 22 December 2016 and amended on 18 December 2020 (“the application”) is:
The Second Respondent (the Authority) erred by concluding that the Applicant would not suffer serious harm as result of being detained in Sri Lanka.
Particulars
a.The Authority’s statutory task under Part 7AA of the Migration Act 1958 (Cth) (the Act) is to determine whether or not the criteria for the grant of a protection visa have been met.
b.The Authority accepted that the Applicant would be investigated, prosecuted and punished as a result of his membership of a particular social group, namely, failed asylum seekers in Sri Lanka. The Authority also accepted the possibility that the Applicant’s status as a failed asylum seeker meant that he would be detained in overcrowded and unsanitary conditions (CB 154,[39]).
c.The Applicant clearly expressed his frailty and the particular risks of harm that detention presents for him given his disability (CB 85).
d.In reaching its conclusion that the treatment of the Applicant would not amount to persecution within the meaning of the Act, the Authority failed to consider whether detention of the Applicant would expose him to a risk of serious harm given his disability, frailty and personal circumstances[.]
e.Further or alternatively, the Authority failed to engage a genuine and active intellectual process with respect to significant and clearly expressed representations and evidence by the applicant about the risk of serious harm arising from detention.
In his oral submissions, the applicant said that there were four propositions that formed the basis of this ground. Those propositions were:
(a)given his disability, the applicant claimed to fear serious harm from even a brief period of interrogation and detention;
(b)the Authority did not engage in an active intellectual process when evaluating whether the brief detention would constitute serious harm for the applicant, given his personal vulnerability, that is, his deafness and his history of interaction with authorities and being unable to understand what is put to him during interrogations, and the harm that ensues as a result of that misunderstanding or lack of comprehension;
(c)in determining whether the claimant has a well-founded fear of persecution, the Authority must have regard to personal attributes such as frailty; and
(d)had the Authority properly considered that claim, it could have come to a different conclusion about whether the applicant was owed protection obligations.
In his written submissions, the applicant summarised this ground as follows:
The Authority failed to consider the Applicant’s personal vulnerability when evaluating whether detention would constitute serious harm
The applicant submitted in his written submissions that:
3.1The Applicant claimed to fear persecution as a member of a particular social group, namely as a disabled Tamil being detained and interrogated by the authorities in Sri Lanka. Critically, he claimed that, because of his disability, any detention or interrogation would expose him to a risk of serious harm. In his statutory declaration dated 15 March 2016, the Applicant said that:
[17.]… I believe that because I am deaf I am more vulnerable to interrogation, beatings and torture at the hands of the army. While on some occasions when I said I was deaf the army let me go, on the most recent occasion when I told the officers I was deaf it made them beat me more. I do not understand what they are saying and cannot do what they ask. Being deaf makes me more of a target for persecution by the army and less able to look after myself or defend myself. If there is no one to communicate for me I will be helpless. (emphasis added)
3.2That passage evinces a clear claim that being detained and interrogated by authorities presents a particular risk for the Applicant. He is unable to hear or understand what is asked of him and that fact, he claims, has resulted in him being harmed in the past. …
The applicant submitted orally that:
The claim for the avoidance of doubt … is about his capacity to comprehend, in a detention circumstance, questions put to him, and the anxiety and harm that causes him, when he cannot comprehend.
The applicant also relied on paragraph 11 of his statutory declaration declared on 15 March 2016 where he said that:
In December 2011 an officer of the army came to my house and took me to an army camp. My wife came with me so that she could communicate with them because of my hearing problems. When I got to the camp the army asked me if I was working for the LTTE. Tamils running businesses were often suspected of supplying money and goods to the LTTE. They suspected that I was giving money to the LTTE and kept accusing me of supporting the LTTE. My wife said that we were not involved in anything with the LTTE. They wouldn’t believe us. My wife was asked to leave the room and they kept interrogating me. I was scared and urinated [on] myself. In my 2013 statement it says I was beaten. However the beating happened on another occasion. At this time I was detained and interrogated but after I began crying and urinated [on] myself they let me go.
The applicant submitted that that paragraph contained a claim that there was a particular risk of harm to a deaf Tamil when interrogated by the authorities generally. When it was put to the applicant that he was in fact released on that occasion, the applicant submitted that:
…that warrants consideration by the Authority, … the interrogation of a deaf man where the deaf man does not understand what is being put to him and causes him such an anxiety and fear that he urinates on himself, that may or may not be serious harm. But the Authority ought to have turned its mind to it, in my submission, and it did not.
The applicant also relied on his adviser’s submission dated 17 December 2016 to the Authority where it was said at paragraph 3 on page 3 that:
The applicant states in his 15 March 2016 statutory declaration that he believes it is likely the people who abducted him were the CID or army. The Applicant’s experience on 2 January 2012 was the final event that triggered his fleeing from Sri Lanka. It was a terrifying experience on any view. It was serious, cruel, inhumane, degrading and humiliating. And, we submit, that for a deaf person at least it was physical and psychological torture. Far from the Applicant’s experience post the civil war being one of improvement his position was progressively worsening in an alarming way. (emphasis added)
The applicant noted that the Authority used two headings, “Tamil ethnicity – imputed political opinion” and “Illegal departure – failed asylum seeker”, but did not have a heading, “Deaf Tamils in Sri Lanka”. The applicant submitted orally that the structure of the Authority’s reasons “doesn’t immediately reveal” that the applicant’s personal vulnerability was part of the Authority’s reasons.
That reads too much into the structure of the Authority’s reasons for decision. Obviously, it is necessary to look at the detail of what the Authority said to determine whether it considered the claim.
The Minister submitted that the claim in paragraph 17 of the applicant’s statutory declaration was confined to mistreatment by the army, and that any detention experienced by the applicant as a returned failed asylum seeker would not be inflicted by the army but by the civil authorities.
The Minister’s construction of the claim is unduly narrow. Obviously, the Authority was obliged to consider any claim that arose on the materials. In paragraph 17 of his statutory declaration, the applicant was describing what would happen to him if he were interrogated. His description applied as much to interrogation by the civil authorities as the military authorities.
The Minister submitted at paragraph 6 of his written submissions that the applicant’s claim was about being “targeted in society”, not about suffering some form of harm if detained. Like the Minister’s submission about interrogation by the army, this is an unduly restrictive construction of the claim. The applicant’s description applies to any interrogation.
The Authority said in relation to the applicant’s deafness that:
6.…
·The applicant is deaf and understands oral communication by lip reading.
…
10.I also accept that the applicant has a hearing disability. It was noted by the delegate at the applicant’s arrival interview on 16 January 2013 that he has difficulty hearing. The applicant states he taught himself to read lips and since living in Australia he has also been provided with a hearing aid. He states that because he is deaf and reads lips it is sometimes difficult for him to communicate effectively. He also stated in his SHEV interview that sometimes he struggles to understand what is put to him but that he is usually able to understand once the question has been repeated. It is apparent from reviewing the applicant’s invalid PV866 application from 2013 (the 2013 statement) and his SHEV application dated 15 March 2016 that there are some discrepancies in the evidence he has given throughout the protection process. Except as noted throughout this decision, by themselves, I do not regard these as material. The applicant has, unprompted, corrected a number of matters in his later evidence and has explained some apparent omissions and inconsistencies as attributable to his disability and problems in communication which I accept has presented some challenges for the applicant in effectively putting forward all his claims for protection. In view of the challenges he has faced because of his disability, I have, where I consider it appropriate to do so, given the applicant the benefit of the doubt. (emphasis added)
…
19The applicant claims he was kidnapped on 2 January 2012 in a white van, taken to Pallai near a lake and held for one day. He clarified in his 2013 statement that it was one day not a week as recorded in his entry interview. He claims he was beaten and then had to be hospitalised for a week. He kept telling them he couldn’t hear them but the more he said that, the more they beat him. Eventually he told them he would pay them and begged them to stop; he gave them 113,000 rupees, they then just left him to run away. The applicant has provided a HRCSL complaint record which appears to confirm the incident as claimed.
20The applicant’s claim to have been the victim of a white van abduction has remained consistent throughout the protection process although after initially claiming he had no idea who the people were who took him, he stated in his 2016 statement that he believes it is likely they were the CID or SLA. On the basis of this, the HRCSL complaint form recording a complaint on 3 January 2012 made by the applicant’s wife and the applicant’s consistent evidence about the incident, I accept that the applicant was abducted and beaten in January 2012 and that after he paid his captors 113,000 rupees he was let go. There is nothing to indicate, however, that the incident was connected to his earlier questioning by the SLA. The applicant’s evidence about who it was who abducted him in 2012 has changed over time from initially stating he didn’t know who they were (2013 statement) to believing it was the CID or SLA (2016 statement) to the statement in his SHEV interview that it was ‘different army guys’ than the ones who previously took him in for questioning. Country information confirms the existence of the so-called ‘white van’ culture of Sri Lanka and that in the areas controlled by the government, of the four categories of persons targeted for abduction, three were people suspected of links to the LTTE; the other was business people who were frequently targeted and abducted in order to extract large sums of money. While the applicant was beaten, he states he does not know what was being said to him because he could not hear them and cannot say with certainty who it was who abducted him. I find the applicant was abducted in January 2012 by unknown people, beaten and let go after he paid them 113,000 rupees. (Emphasis by the applicant in oral submissions)
…
30.The applicant claimed he left Sri Lanka illegally without using his passport which I note has now expired. I accept that the applicant departed Sri Lanka unlawfully and that by the manner of his return, he will be identified by the authorities as an illegal departee and failed asylum seeker.
31.Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under ss.35 and 45(1)(b) of the I&E Act it is an offence to depart other than via an approved port of departure and penalties for doing so can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD2,000). DFAT advises that most Sri Lankan returnees, including those from Australia, are questioned on return by police and, in the case of suspected illegal departures, charged under the I&E Act and, in most cases, arrested at the airport. After initial investigations, they are then transported by police to the closest Magistrates Court following which, custody and responsibility for the person rests with the courts or prison services.
32.DFAT advises that those arrested may spend up to 24 hours in police custody at the airport and if a magistrate is not available (by reason of a public holiday or a weekend, for example) those charged may be held at a nearby prison. DFAT has been informed by Sri Lanka’s Attorney-General’s Department (which is responsible for the conduct of prosecutions) that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. Fines, however, have been issued to act as a deterrent towards joining boat ventures in the future.
…
36.The applicant’s representative has submitted that his profile as a Tamil with a hearing impediment would make him stand out as a vulnerable failed asylum seeker if he is forcibly returned to Sri Lanka. The submission does not expand on this claim or detail in what way the applicant’s disability would render him particularly vulnerable on return over and above his status as a returning asylum seeker. I note that Sri Lankan law and the constitution prohibit discrimination based on disability and while instances of discrimination on this basis occurred during 2015, there is no information before me about the circumstances in which it occurred or whether those circumstances would apply to the applicant. The applicant has, in my view, demonstrated an ability to manage himself and his life notwithstanding his disability and while I accept that sometimes it may take the applicant more time to understand and communicate because of his hearing problem, I do not accept that this puts him at risk of harm. (emphasis added)
…
39.Considering the totality of the treatment that the applicant will experience, that is, questioning by the authorities during investigations at the airport, combined with possible brief detention in overcrowded and unsanitary conditions, and the imposition of a fine, I find that this treatment does not amount to serious harm. The I&E Act applies to regulate all arrivals and departures from Sri Lanka; the offence provisions apply therefore equally to all persons who depart Sri Lanka illegally and return. Case law states that a generally applicable law will not ordinarily constitute persecution because the application of such a law does not amount to discrimination. The law is not discriminatory on its terms nor, on the evidence before me, is it selectively enforced or applied in a discriminatory way. Accordingly, I find the investigation, prosecution and punishment of the applicant for illegal departure under the I&E Act does not amount to persecution within the meaning of s.5J(4) of the Act.
40.As urged by the applicant’s representative I have also considered the applicant’s claims cumulatively. The applicant’s profile as a hearing impaired Tamil businessman who has in the past been questioned about imputed LTTE support and who has been kidnapped for extortion and who will be returning as a failed asylum seeker and illegal departee does not suggest, taken together, that he will be on return a person of adverse interest to the authorities. I am not satisfied the applicant has a well-founded fear of persecution.
(Footnotes omitted).
The applicant submitted at 3.4 of his written submissions that the Authority had failed to engage in an active intellectual process in relation to the claim that detention and interrogation of the applicant would constitute serious harm in the light of his disability. That submission is unsustainable, in view of paragraph 36 of the Authority’s reasons for decision, where the Authority said:
…The applicant has, in my view, demonstrated an ability to manage himself and his life notwithstanding his disability and while I accept that sometimes it may take the applicant more time to understand and communicate because of his hearing problem, I do not accept that this puts him at risk of harm.
Clearly, the active intellectual process undertaken by the Authority did not arrive at the conclusion the applicant wanted. However, that does not mean an active intellectual process was not undertaken. This ground is basically seeking impermissible merits review.
The applicant submitted that the Authority was required to have regard to the applicant’s personal attributes, such as his deafness. That is undoubtedly correct. However, the Authority expressly had regard to the applicant’s deafness. The Authority simply did not accept that it meant that the applicant faced a real chance of serious or significant harm.
The applicant submitted at [3.5] of his written submissions that the Authority’s conclusion in paragraph 40 of its reasons for decision was not “dispositive of active engagement with the question of whether the Applicant would suffer serious harm if detained and interrogated.” However, paragraph 40 of the Authority’s reasons for decision is not the totality of the Authority’s consideration of this issue. Paragraph 36 of the Authority’s reasons must also be given proper weight.
The applicant submitted at [3.6] of his written submissions that the Authority had missed the point when it said in paragraph 36 of its reasons for decision that:
…The applicant has, in my view, demonstrated an ability to manage himself and his life notwithstanding his disability and while I accept that sometimes it may take the applicant more time to understand and communicate because of his hearing problem, I do not accept that this puts him at risk of harm.
The applicant submitted that the applicant had not claimed that his disability made it difficult to manage himself. That is beside the point. The Authority was entitled to assess the facts for itself, and respond to the applicant’s claims by concluding that the applicant did not face a real risk of serious or significant harm because he was able to deal with particular problems by, in the present case, managing himself.
The applicant then argued that the applicant “taking more time to understand” was not a mere inconvenience, but a direct risk to his health and well-being. The applicant said that the Authority did not engage with that specific claim.
However, the Authority specifically said in paragraph 36 of its reasons for decision:
…The submission does not expand on this claim or detail in what way the applicant’s disability would render him particularly vulnerable on return over and above his status as a returning asylum seeker …
That is, the applicant, with the assistance of his adviser, did not spell out for the Authority the precise issue that his deafness created. The applicant’s counsel was unable to articulate the issue during oral submissions in this court. Counsel seems to have considered the point to be self-evident.
It seems to me that it is not self-evident that this particular applicant’s deafness, in conjunction with his other circumstances, would amount to a real risk of the applicant facing serious or significant harm if interrogated. On the applicant’s own evidence, he was able to tell his interrogators that he is deaf. On his own evidence, he is able to lip read. On his own evidence, he had successfully operated his own vegetable shop for 20 years by lip reading.[1] On his own evidence, he has been given a hearing aid in Australia. The applicant’s evidence means that it was open to the Authority to conclude that, even with his disability, the applicant did not face serious or significant harm.
[1] Delegate’s decision: CB115 and CB 117.
On the facts as found by the Authority:
(a)the applicant was detained by the Sri Lankan Army in 2011 for about 30 minutes and released when it was discovered that he is deaf; and
(b)the applicant was abducted in 2012 by extortionists and the possibility of this recurring is remote.
On the facts as found, it was open to the Authority to conclude that the applicant, even with his disability, did not face a real risk of serious or significant harm.
The applicant also submitted orally that the Authority had gone off track by saying in paragraph 36 of its reasons for decision that:
The applicant’s representative has submitted that his profile as a Tamil with a hearing impediment would make him stand out as a vulnerable failed asylum seeker if he is forcibly returned to Sri Lanka … (emphasis added)
The applicant submitted that he had not claimed that he would stand out as a deaf person. However, that is simply inaccurate. At the fourth paragraph on page 3 of the applicant’s adviser’s written submission dated 17 October 2016 to the Authority, the adviser said:
…The applicant’s profile as a Tamil with a hearing impediment would make him stand out as a vulnerable failed asylum seeker if he is forcibly returned to Sri Lanka. (Emphasis added).
Consequently, it was entirely proper for the Authority to record the submission in paragraph 36 of its reasons for decision.
It was common ground before this court that serious harm and significant harm include mental harm. However, there is no reason to consider that the Authority was not cognisant of that. The Authority noted in paragraph 18 of its reasons for decision the applicant’s claim that, in the 2011 incident, he was scared, crying and urinated on himself. However, given that the applicant was held on that occasion for 30 minutes, and the prospect of being held by extortionists in the future was remote, it was open to the Authority to conclude that the applicant did not face a real risk of serious or significant harm, including mental harm, if interrogated in the future.
Ground 1 is not made out.
GROUND 2
The second ground of review in the application is:
The Authority erred by failing to consider whether the Applicant was entitled to protection as a result of his status as a human rights complainant.
Particulars
a)The Applicant provided clear evidence of a complaint he made to the Human Rights Commission of Sri Lanka (CB 93).
b)The Authority cited country information that contained claims about the risk of harm for people in Sri Lanka who make complaints to human rights organisations (CB 153).
c)It was plain on the face of the material before the Authority that the Applicant is likely to suffer harm on the basis of his membership of a particular social group, namely, human rights complainants in Sri Lanka.
d)The Authority failed to consider whether or not the criteria for the grant of a protection visa had been met by the Applicant’s status as a human rights complainant.
In oral submissions, the applicant outlined four propositions in relation to this ground:
(a)the material that is before the Authority clearly established the human rights complainants were at risk of serious harm in Sri Lanka;
(b)a claim to fear harm as a human rights complainant arose on the face of the materials;
(c)the Authority did not consider whether the applicant was at risk of harm as a human rights complainant; and
(d)had it done so it could have come to a different conclusion about Australia’s protection obligations.
The applicant’s written submissions filed on 20 April 2021 in support of this point state:
3.11The Authority referenced the Applicant’s status as a human rights complainant in its summary of the Applicant’s claims for protection as well in its considerations of the Applicant’s claims about his 2012 white van abduction. However, nowhere in the Authority’s reasons is a consideration of the risk of harm to the Applicant as a human rights complainant. That is so despite the fact that the Authority had before it clear country information about that precise risk. At [27] of its reasons, the Authority cites a number of reports to support its conclusion that it was “not otherwise satisfied the applicant is at risk of harm on return to Sri Lanka.” One of those reports was the 2012 UNHCR Eligibility Guidelines for assessing protection needs of Sri Lanka asylum seekers. That report notes, inter alia, that:
Persons seeking justice after mistreatment by the police have reportedly been harassed and received threats, in an attempt to make them withdraw their cases. In August 2012, a complainant of a human rights violation was reportedly arrested and tortured by the police in Negombo.
…
Persons of the above profile are, depending on the individual circumstances of the case, likely to be in need of international refugee protection on account of their (perceived) political opinion. Ethnicity may also play a role.
3.12Another report cited by the Authority was the 2014/2015 Amnesty International report on Sri Lanka, which notes, inter alia, that:
Authorities continued to threaten, harass and arrest human rights defenders, including lawyers, family members of the disappeared and other activists. None of the incidents known to Amnesty International were effectively investigated, and no prosecutions were initiated. People calling for accountability for past and current human rights violations, including human rights defenders attempting to communicate concerns to the UN, were harassed and threatened. In some instances, individuals suspected of “internationalizing” these issues through association with foreign colleagues were detained.
(Footnotes omitted).
The evidence of a complaint made to the Human Rights Commission of Sri Lanka consists of statements in the applicant’s statutory declaration and a written acknowledgement by the Human Rights Commission of Sri Lanka of receipt of a complaint with a particular date. The acknowledgement was addressed to the applicant’s wife and stated:
Dear Madam,
HRC/JA/[reference number omitted]
This is to inform you that your complaint dated [date omitted] has been registered under the above number and is receiving the attention of the Commission.
[signed]
The applicant’s statutory declaration declared on 15 March 2016 relevantly stated:
12.Officers of the army kept coming to our shop and harassing us, accusing us of working with the LTTE. I was kept under surveillance. I was afraid of what would happened so I stopped working and left only my wife in the shop. Throughout the war and after the ceasefire many young Tamil men were suspected of being members of the LTTE. Many were being abducted in white vans by the CID or army and disappeared and tortured. Only a few weeks after I was taken to the army camp the incident described in my original statement on 2 January 2012 occurred. While as I stated I do not know who the people in the white van were, I believe it is likely they were the CID or army.
13.The next day my wife went to the United Nations Human Rights Commission and made a complaint about my detention and beating. Nothing came of this complaint. My parents also made a complaint to the police but nothing happened.
14.After this happened I was scared that I would be abducted again …
…
18.The Sri Lankan authorities cannot protect me. The army are the ones who are persecuting me. The police did not act when my family complained after I was taken in the white van. The UNHCR did not do anything. There is no one able and willing to protect me from harm.
In the applicant’s original statutory declaration, which was declared on 25 July 2013, the applicant said at paragraph 8 that:
I was kidnapped on 2 January 2012. People in a white van abducted me. I don’t know who they were.
The Minister tacitly acknowledged that the Authority did not address any claim that the applicant was at risk as a human rights complainant. However, the Minister submitted that there was no such claim, and it did not clearly arise on the materials.
Firstly, the Minister argued in his written submissions that, contrary to 3.11 of the applicant’s written submissions, the Authority did not characterise the applicant as a human rights complainant. The Authority said in its summary of the applicant’s claims in paragraph 6 of its reasons for decision that:
… his wife made a complaint to the Human Rights Commission of Sri Lanka about his detention and beating but nothing happened.
I accept the Minister’s submission that the Authority did not characterise the applicant as a human rights complainant.
Secondly, the Minister submitted that the applicant was not, technically, a human rights complainant, because it was his wife, rather than him, who made the complaint. That is an unduly refined distinction. The complaint to the Human Rights Commission of Sri Lanka was about the applicant’s treatment, so it seems obvious that any repercussions would have been inflicted on him.
The Minister submitted then that the applicant did not make an express claim to fear harm arising from his wife’s human rights complaint. The Minister submitted that the applicant mentioned the human rights complaint to bolster his claim about mistreatment by the authorities, and to demonstrate that no one would protect him.
The applicant argued that the applicant had raised the claim expressly, because he said in his statutory declaration declared on 15 March 2016 that he feared being “abducted again” immediately after mentioning his wife’s human rights complaint.
However, in context, the fear of being “abducted again” obviously relates to the white van abduction on 2 January 2012, and had nothing to do with any fears arising from the human rights complaint. It would make no sense to say he feared being “abducted again” in relation to that complaint, because he had never been abducted in relation to it.
It also does not make sense that the applicant would have meant the human rights complaint when he used the words “After this happened” at paragraph 14 of his statutory declaration declared on 15 March 2016. Those words are not apt to mean the complaint made by the applicant’s wife and the complaint made by the applicant’s parents. In context, they clearly mean the 2012 abduction.
The Minister is correct on this point. That is, the applicant did not make an express claim to fear harm because his wife had made a human rights complaint.
In relation to whether the claim arose on the materials, the Minister submitted that the Amnesty International report concerned “human rights defenders” and those who attempted to “internationalize” human rights abuses, and it therefore did not apply to the applicant or his wife.
The Amnesty International report also mentions “family members of the disappeared”. However, the applicant has not disappeared. He was obviously not a person of sufficient interest to the authorities for them to make him disappear. The applicant’s wife’s standing as his family member therefore did not put her into the category of family members of the disappeared.
More generally, I accept that the Amnesty International report concerns activists and others who do more than make a single human rights complaint about a particular incident. A claim that the applicant faces serious or significant harm because his wife lodged a human rights complaint about his treatment did not clearly arise from the Amnesty International report.
The UNHCR report indicates that some people have been harassed and threatened in an attempt to make them withdraw their human rights complaints. However, the applicant’s evidence was to the effect that nothing happened to him or his wife after she lodged the complaint in relation to his treatment.
In these circumstances, I do not consider that it can be said that a claim arose sufficiently clearly from the UNHCR report that the applicant faced a real risk of serious or significant harm because the applicant’s wife made a human rights complaint in relation to him.
I am strengthened in that view by the fact that, in his six page written submission dated 17 December 2016 to the Authority, the applicant’s adviser did not argue that the delegate had failed to consider a claim that the applicant faced a real risk of serious or significant harm because his wife had made a human rights complaint. The material the applicant said gave rise to that claim, being the Amnesty International report and the UNHCR report were also before the delegate (see footnotes 5, 6, 25 and 26 to the delegate’s decision dated 20 September 2016), but the delegate did not address the alleged claim. If that claim had clearly arisen on the materials, I consider that the applicant’s adviser would have made something of the issue in his written submissions to the Authority. The applicant’s adviser was not merely a migration agent, but was Legal Counsel with the Asylum Seeker Resource Centre.
Ground 2 is not made out.
GROUND 3
The third ground of review in the application is:
The Authority erred by concluding on the basis of irrational or illogical findings of fact that the Applicant did not face a risk of persecution because of suspected LTTE connections.
Particulars
a.The Authority accepted that the Applicant was detained and questioned in relation to support for the LTTE (CB 152, [25] and CB 154, [29].
b.Despite that acceptance, the Authority concludes that there is ‘no evidence that the applicant was targeted on the pretext of LTTE connections’ (CB 152, [26]).
c.The Authority’s conclusions about the risk of persecution because of suspected LTTE connections were internally inconsistent. The evaluation of the risk of harm to the Applicant was affected by irrational or illogical findings of fact.
An irrational decision was described by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 at [130] as being a decision “at which no rational or logical decision maker could arrive on the same evidence.” Similarly, in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 Wigney J said at [63] that, to sustain a complaint of irrationality:
…it must be shown that the finding was not one that could have been made by, or reasoning that could not have been employed by, a reasonable or rational person. Emphatic disagreement does not suffice …
Ground 3 concerns the following paragraphs of the Authority’s decision:
21.I do not accept the claim made by the applicant at interview that he went into hiding after this incident and decided to leave. The applicant was not asked any questions about this claim, however, he did not claim to have moved away from his home to go into hiding, he simply stated he did not do any business in the period between the kidnap incident and when he left for Australia on 27 July 2012. I infer from this that the applicant remained at his family home for the six months after being kidnapped before he left, during which time the SLA could have found the applicant at any time if he had been of any interest to the authorities. In his SHEV interview he claimed that while nothing happened after this incident he was afraid he would be abducted again; he thought he might not only be beaten but tortured or even disappeared. When the delegate asked him about this claim, the applicant stated he thought it was going to be terrible to live there and that each previous time they had beaten him and he managed to get out a few times but this was not going to happen for long. I do not accept that the applicant was in hiding for the six months before he left Sri Lanka nor do I accept the applicant’s statement ‘that each previous time they had beaten him’.
…
25.Considering the applicant’s evidence as a whole, I am not satisfied he is a person of interest to the Sri Lankan authorities. I have accepted that he was detained and questioned by the SLA on two occasions (1997 and 2011) in relation to support for the LTTE, financially or otherwise. However, the applicant’s experience appears to be typical of that experienced by many Tamils during the war and its immediate aftermath. DFAT’s assessment is that the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict and in particular, has decreased under the Sirisena government.
26.In regard to the January 2012 incident, the applicant’s evidence is that he was beaten continuously, threatened with a knife, he told his captors he would pay them and gave them the money he had in his pocket; they then left him to run away. Country information suggests that although white-van disappearances and killings began as a calculated campaign to weed out and eradicate suspected LTTE elements, there were many instances where they were committed to make money alone. There is also evidence that the police and armed forces colluded in abducting persons for ransom. The fact that the applicant was released after giving them the money he was carrying with no further repercussions satisfies me that the motive was financial, that is, that he was abducted for the purpose of extorting money. Whether or not the 2012 incident was attributable to the CID or SLA as the applicant claims, ‘white van’ abductions are now seldom reported. In 2015 the International Truth and Justice Project (ITJP) reported that after the January presidential elections and the August parliamentary elections, there were instances of white van abductions, unauthorised detention and torture. The applicant’s representative has submitted that the incident makes the applicant more vulnerable to further physical and psychological persecution on the pretext of alleged connections with the LTTE for extortion purposes as well. However, recent reports are that the “white vanning culture” has virtually disappeared in recent times following the election of the Sirisena-Wickremesinghe government in 2015. There is also no evidence that the applicant was targeted on the pretext of LTTE connections and on the basis that the LTTE as an organization no longer exists, I am satisfied that while it is possible that the applicant may be the victim of a white-van abduction and extortion attempt in future, I consider the possibility to be remote.
…
29.Assessing the evidence, overall, I am not satisfied the applicant has a well founded fear of persecution. Apart from the instances which I accept occurred during which the applicant was questioned regarding LTTE support and the instance in 2012 which appears to have been an isolated instance of extortion, the applicant was able to establish and run for over 20 years a successful business selling vegetables and maintain his family as a result of this venture. There is no evidence before me that his business was harmed in the past or that on his return he would be unable to resume his role in that business. Considering the country information and the applicant’s personal circumstances, I am not satisfied there is a real chance the applicant would suffer serious harm on return to Sri Lanka now or in the reasonably foreseeable future on the basis of his ethnicity or imputed political opinion.
(Footnotes omitted) (emphasis added).
The applicant said at [3.20] of his written submissions that the Authority’s decision was irrational because it made findings which were without foundation or which were internally inconsistent. More particularly, the applicant submitted:
i. At [26] of its reasons, the Authority finds that there was ‘no evidence’ that the applicant was targeted on the pretext of LTTE connections. However, that conclusion is inconsistent with its own findings at [25] where it said that it had “accepted that [the Applicant] was detained and questioned by the SLA on two occasions (1997 and 2011) in relation to support for the LTTE, financially or otherwise”;
ii. Similarly, although at [26] of its reasons, the Authority finds that there was ‘no evidence’ that the applicant was targeted on the pretext of LTTE connections, that finding is inconsistent with the Authority’s observations at [29] noting that it had accepted that the Applicant was questioned regarding LTTE support; and
iii. The Authority rejected the Applicant’s claim that he had been forced into hiding as a result of the interest from the Authorities without any objective, probative basis. It did so while acknowledging that Applicant had not been asked about that claim and in a context where the Delegate had not raised any concerns about the truth of that claim [in] its own decision.
There is no inconsistency in relation to point (i). The Authority’s decision rests on the well-known distinction in Sri Lanka between targeted arrests and general round ups of young Tamil men. In paragraph 13 of its reasons for decision, the Authority specifically stated that the applicant was questioned in 1997 “as part of a routine round-up of young Tamil men.” In paragraph 11 of his statutory declaration declared on 15 March 2016, the applicant said, in relation to the 2011 incident:
Tamils running businesses were often suspected of supplying money and goods to the LTTE.
That is, the applicant’s 2011 interrogation was not targeted, but was part of the general questioning of Tamil businessmen. The fact that the applicant was not targeted on this occasion is highlighted by him being released after only 30 minutes and not beaten.
The same response applies to the applicant’s point (ii).
In relation to the applicant’s point (iii), paragraph 21 of the Authority’s reasons for decision explains the basis of the Authority’s rejection of the claim that the applicant went into hiding. It is simply not the case that the Authority is required to produce contradictory evidence in order to reject a claim made by an applicant. It is sufficient that the Authority is not persuaded on the material before it. The Authority’s decision on this issue was not one “at which no rational or logical decision maker could arrive on the same evidence”: SZMDS.
CONCLUSION
As none of the applicant’s grounds has been made out, the application will be dismissed with costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 1 June 2021
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