EDB16 v Minister for Immigration
[2020] FCCA 1266
•27 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDB16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1266 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether the Authority overlooked critical evidence – whether the Authority misapplied real chance test – whether the Authority acted unreasonably or irrationally – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 36, 473DD, 476 |
| Cases cited: ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 |
| Applicant: | EDB16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2832 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 12 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Mr N. Wood |
| Solicitors for the Respondents: | DLA Piper |
| Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2832 of 2016
| EDB16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an amended application filed on 8 August 2018 (Amended Application), the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority), dated 15 December 2016. The Authority affirmed a decision of a delegate (Delegate) of the then Minister for Immigration and Border Protection (Minister) to refuse to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (Visa).
The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The materials the Court has considered in preparing these reasons for judgment include the Amended Application, outlines of written submissions from the Applicant dated 9 August 2018 and 5 September 2018 (Applicant’s Supplementary Submissions), outlines of written submissions filed by the Minister dated 23 August 2018 and 12 September 2018 (Minister’s Supplementary Submissions), the Court Book and the transcript of the hearing that took place before the Court.
Background
The Applicant is a citizen of Sri Lanka. He arrived in Australia by boat on 21 October 2012[1]. As a result of his unauthorised arrival, the Applicant was unable to apply for a protection visa until the Minister “lifted the bar”.
[1] Court Book (CB) 1.
On 19 December 2015, the Minister lifted the bar and the Applicant was invited to apply for the Visa[2]. On 1 March 2016, the Applicant applied for the Visa[3]. The Applicant’s claims for protection can be summarised as follows[4]:
a)His life is in danger from the Sri Lankan security forces and an unknown armed group because of his involvement with the Liberation Tigers of Tamil Eelam (LTTE) and the Tamil National Alliance (TNA). The Applicant had previously been threatened by the unknown group and detained by the Sri Lankan authorities.
b)If he were to return to Sri Lanka, he will be subject to the Immigrants and Emigrants Act 1949 (I & E Act) and will be detained and interrogated regarding his illegal departure. He will be prosecuted for his illegal departure.
c)In 2005, the Applicant’s father helped the LTTE by providing the LTTE with his vehicle and buying them diesel and food. When his father’s vehicle was found by the Special Task Force (STF) in 2007, the Applicant and his father were detained and tortured for three days by the STF, who enquired about their LTTE association. After this the Applicant was monitored[5].
d)In 2012, the Applicant was involved in campaigning for the TNA. He was assaulted by political opponents (who he believed to be from the Tamil Makkal Viduthalai Pulikal (TMVP)) and was thrown against a fence[6].
e)Three days before his journey to Australia, the Applicant met two men who asked him whether he was planning to go to Australia. The men told the Applicant and his friend that they should inform the men if they knew anyone leaving for Australia. After the Applicant left, the same men came to the Applicant’s house in Sri Lanka and advised his family that he should report to the police station when he returns[7].
[2] CB 36.
[3] CB 36-96.
[4] CB 30, 69-71.
[5] CB 3, at [4]-[6].
[6] CB 3, at [7].
[7] CB 3, at [12]-[13].
The Applicant attended an interview before the Delegate on 18 July 2016[8]. On 19 August 2016, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision)[9]. The Delegate was not satisfied that the Applicant met the criteria to be granted the Visa.
[8] CB 107.
[9] CB 1-11, 127-142.
The Applicant’s matter was referred to the Authority on 31 August 2016[10]. On 7 September 2016, the Applicant provided the Authority with a submission[11] (Applicant’s September 2016 Submission) and country information[12]. A further submission and documents were provided by the Applicant to the Authority on 18 September 2016[13].
[10] CB 145-146
[11] CB 149-150.
[12] CB 151-192.
[13] CB 193-196.
On 15 December 2016, the Authority affirmed the decision to refuse the Applicant the Visa[14] (Authority’s Decision).
[14] CB 201-215.
Authority’s Decision
The Authority’s Decision is found in the Court Book at pages 201 to 215.
Having summarised the background of the Visa application[15], the Authority considered the information that the Applicant had provided. In relation to the information provided in the Applicant’s September 2016 Submission, the Authority found that it did not contain new information and therefore considered it[16]. In relation to the information provided on 18 September 2016, the Authority considered the information in the covering letter, however did not consider the attached documents, as the Authority did not consider that they met the requirements of s.473DD of the Act[17].
[15] CB 202, at [1]-[4].
[16] CB 202, at [6].
[17] CB 202-203, at [7].
The Authority accepted that the Applicant was a Tamil male from an area formerly under LTTE control and that he departed Sri Lanka unlawfully. It noted that the Applicant will be subject to a degree of scrutiny at the airport on return, as part of routine processing, and that he may also face prosecution. The Authority considered the cumulative impact of these matters and how the Applicant may be viewed on return, and referred to country information relevant to assessing asylum claims for those from Sri Lanka[18].
[18] CB 204, at [12].
The Authority accepted that the Applicant was detained in 2007. The Authority also accepted that the Applicant’s father was forced to hand over his car to the LTTE, for the LTTE’s purposes, and that the Applicant and his father were detained and beaten for three days. However, in light of the Applicant and his father being released, the Authority considered that the Sri Lankan authorities were not satisfied that the Applicant had any additional involvement with, or were members of, the LTTE. The country information also suggested that this type of occurrence was “similar” for all those in LTTE controlled areas[19].
[19] CB 205, at [13].
The Authority also accepted that the Applicant continued to be monitored by the authorities after 2007. However, the Authority considered that this ongoing interest (only when the Applicant returned to his home area and not when he lived with his uncle), occurred in the context of the routine monitoring of the Tamil population which continued after the war. The Authority was satisfied that this monitoring did not indicate that the authorities had any particular ongoing suspicion or concerns about what the Applicant’s involvement with the LTTE during the war actually was, as had they had such concerns or suspicions, he would have been subject to more intensive and focussed investigation[20].
[20] CB 205, at [14].
Having referred to country information, the Authority accepted that some people with certain LTTE links continue to be at risk of harm and there are still security crackdowns. However, the Applicant’s minimal past connection with the LTTE and the nature of his past interactions with the security forces caused the Authority to consider that the Applicant was not, and would not, be of concern to the security forces as a person suspected of seeking to revive the LTTE, or of engaging in anti-government activity. The available information did not indicate to the Authority that there was a real chance that the Applicant would be subjected to a “new level” of scrutiny on return[21].
[21] CB 205, at [15].
At [16], the Authority stated:
Having regard to the country information and to the individual circumstances of the applicant, I am not satisfied that there is a real chance that he faces serious harm amounting to persecution on return to Sri Lanka because he is suspected of actual or imputed LTTE connections for any reason, including his Tamil ethnicity; his place of residence in a formerly LTTE controlled area; because his father provided equipment to the LTTE in 2005; or for any other reason arising from the credible evidence about his background. While I accept that some Tamils continue to be at risk of serious human rights abuses that would constitute persecution, in view of the country information and the applicant’s credible evidence about his own circumstances, I am not satisfied, given his particular profile, that there is a real chance that he would be harmed on return to Sri Lanka now or in the reasonably foreseeable future because of actual or imputed support for the LTTE for any reason now or in the reasonably foreseeable future.[22]
[22] CB 206, at [16].
The Authority accepted the Applicant’s claim that he had partaken in “low level electioneering” for a TNA candidate and that he was subjected to a minor assault, most likely by members of the TMVP. It was noted that there was no independent evidence to suggest that low level TNA supporters continued to be at real risk of serious harm years after the elections[23]. By reference to the country information, it was noted that the political situation had changed in Sri Lanka and the TMVP are no longer supported by the government and no longer act in a paramilitary capacity[24]. The Authority’s conclusion on the Applicant’s claim to fear harm for his political opinion was as follows:
Given the minor level of the applicant’s past activity; the length of time that has elapsed since the events of 2012; and the political changes that have taken place since then, which have seen a decline in the influence of the TMVP and a greater role in mainstream national politics for the TNA, I consider that the applicant’s work with the TNA in the 2012 provincial elections would not result in a real chance of serious harm if he returned to Sri Lanka. There is no independent evidence to suggest that low level TNA workers, as I am satisfied the applicant is, continue to be at real risk of serious harm many years after elections. I accept that if the applicant were to continue to assist the TNA in future elections he may be subject to low level harassment, in the context of the documented, generally low level political violence that accompanies election campaigns in Sri Lanka, but I am not satisfied that this would rise to the level of serious harm amounting to persecution, particularly given the changed political climate since the 2012 elections as evidenced in the country information considered by the delegate. [25].
[23] CB 206, at [17].
[24] CB 206, at [18].
[25] CB 206-207, at [19]
Notwithstanding inconsistencies in the Applicant’s account, the Authority considered that the Applicant’s claim that the authorities had made enquiries about him after his departure was not for reasons that he was the subject of any adverse interest or investigation because of any LTTE association, but because inquiries were being made in relation to illegal maritime departures at the time[26].
[26] CB 207, at [20].
The Authority accepted the Applicant left Sri Lanka illegally and referred to the country information indicating that on return he will undergo a routine investigation at the airport because of the circumstances of his departure, and he may be prosecuted under the I & E Act[27]. The Authority referred back to its finding that the Applicant was not suspected of any LTTE connections. It then referred to country information concerning what would occur when the Applicant was processed at the airport. The Authority was satisfied that the Applicant had no identity concerns or criminal records that would attract the attention of the authorities. It found that the authorities would “quickly establish” that the Applicant had no current or past LTTE connections and his campaigning for the TNA would not be of concern, such that no risk of harm would arise[28].
[27] CB 207, at [21].
[28] CB 207, at [22].
The Authority was not satisfied that a custodial sentence would be imposed on the Applicant for his breach of the I & E Act. Rather, a fine would likely be imposed, and the Authority did not consider this to constitute serious harm[29]. If the Applicant were to plead not guilty, the Authority found that he would be released on bail and his family would travel to act as guarantor in these circumstances. The Authority was not satisfied that the Applicant would face any risk of harm as a result of any fine, surety or guarantee[30]. The Authority considered whether a detention of several days would constitute serious harm. It accepted that conditions in Sri Lankan prisons are poor due to a lack of resources, overcrowding and poor sanitation, however a brief period of detention, even taking the prison conditions into account, did not rise to the level of a threat to life or liberty, or to significant physical harassment or ill treatment, or otherwise amount to serious harm for the purposes of the Act. The totality of the treatment that the Applicant would likely experience on return was found not to amount to serious harm[31]. The Authority found, in any event, that the I&E Act was a law of general application[32].
[29] CB 207-208, at [23]-[24].
[30] CB 208, at [25].
[31] CB 208, at [26].
[32] CB 208-209, at [27].
The Authority found:
While there are reports of failed Tamil asylum seekers or other Tamils returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has certain actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker is not enough, in my view, to give rise to a real chance of harm on return. While I accept that the applicant and his father were investigated in relation to suspected links with the LTTE in 2007, I do not accept that the applicant remained under suspicion after that time, nor do I accept that there is a real chance that the past investigation would result in the applicant being subjected to serious harm now or in the reasonably foreseeable future. I do not accept that the applicant will be imputed with pro-LTTE or anti-government dissident beliefs by the authorities because of his family background, or for any other reason, and I find that the applicant does not face a real chance of persecution on returning to Sri Lanka. [33]
[33] CB 208, at [28].
The Authority was not satisfied the Applicant met the refugee criterion pursuant to s.36(2)(a) of the Act[34].
[34] CB 209, at [29].
When considering the complementary protection criterion, for the reasons set out in relation to the refugee criterion, the Authority was not satisfied the Applicant would face a real risk of significant harm if returned to Sri Lanka[35]. At [33]-[34], the Authority stated:
33. As to his treatment under the criminal justice system as a person who departed illegally and/or a failed asylum seeker, as set out above I accept that he will be detained at the airport for questioning and security and character checks. He may be charged with an offence under the I&E Act because he departed Sri Lanka illegally. He may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate who will most likely quickly grant bail. For reasons discussed above, I do not accept that there are any particular aspects of the applicant’s profile that would result in his being detained for a longer period or subjected to more intensive interrogation that might give rise to significant harm. I do not accept that the process outlined above amounts to significant harm; or that the applicant would be exposed to significant harm during this process. Nor does the penalty likely to be imposed on the applicant, or the remand conditions he would most likely face, amount to any form of significant harm. I find that, to date, a custodial sentence has never been imposed on illegal returnees such as the applicant and I am not satisfied that there is a real risk that this applicant faces a custodial sentence. I am not satisfied that there is a real risk that the applicant will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody, taking into account that he may have to wait for a family member to arrive from Batticaloa to post bail.
34. I accept that conditions in prison or detention may be poor, but the evidence does not suggest that the applicant faces the death penalty or arbitrary deprivation of his life. The definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act requires that any pain or suffering be intentionally inflicted on a person. Similarly, “degrading treatment or punishment” is defined to mean an act or omission that causes and is intended to cause extreme humiliation. I am not satisfied that any pain or suffering caused to the applicant by overcrowding and poor and insanitary conditions in prison or on remand would be intentionally inflicted, as required. Nor do I accept that severe overcrowding and poor conditions are intended to cause extreme humiliation. [36]
[35] CB 209, at [32].
[36] CB 209-210, at [33]-[34].
Accordingly, the Authority found the Applicant did not meet s.36(2)(aa) of the Act and affirmed the Delegate’s Decision[37].
[37] CB 210, at [35].
Amended Application
The Amended Application contains three grounds of review as follows:
1. The Authority fell into jurisdictional error in that it failed to have regard to relevant considerations, including relevant material, evidence and information.
Particulars
(a) The Authority said it had regard to the material referred by the Secretary and the information submitted by the Applicant on 7 September 2016. (CB 202, [5]-[6])
(b) That information included information in report by DFAT concerning deaths in custody and credible reports of torture carried out by the Sri Lankan security forces, in some cases resulting in death. (CB 170; 4.11, 4.17)
(c) That information was that “Incidents of torture are not confined to any particular ethnic, religious or political group.”(CB 170, 4.17)
(d) The Authority did not note this evidence about the generality of torture, but said that “... the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has certain actual or perceived links to the LTTE...” (CB 209, [28])
(e) The Authority thereby shows that it did not have regard to important evidence about the generality of the risk of torture.
2. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a) The Authority accepted the Applicant’s claimed history, and some consequences of his history, including:
❖ being detained and beaten for three days with his father in 2007 because his father’s vehicle was found in the possession of the LTTE; (CB 205, Decision Record [12])
❖ the relevance of the UNHCR Guidelines relating to the possible need for international protection by former supporters of the L TTE involved in giving shelter, transport, funding or other support to the LTTE; (CB 205, Decision Record [12])
❖ after detention in 2007 the applicant continued to be monitored by the authorities, and that unidentified armed groups, most likely paramilitaries who at that time were working with the Sri Lankan government, continue to inquire after him and that he may have been taken to the camp on occasions (CB 205, Decision Record [14])
❖ the applicant supported a TNA candidate in elections in 2012 and was threatened and suffered assault by opposition members, most likely the TMVP as the applicant suggested; (CB 206, Decision Record [17])
❖ if the applicant were to continue to assist the LTTE in future elections he may suffer low level harassment, in the context of the documented, generally low-level political violence that accompanies election campaigns in Sri Lanka, but I am not satisfied that this would rise to the level of serious harm ...” (CB 206-207, Decision Record [19])
❖ the applicant left Sri Lanka illegally, and will undergo routine investigation at the airport; (CB 207, Decision Record [21])
(b)Despite its findings above, the Authority found that the applicant has “no relevant profile as a person with actual or suspected links to the LTTE” (CB 207, Decision Record [22])
(c) By reason of its findings that the applicant does not have a real chance of persecution on return to Sri Lanka, or a real risk of significant harm, the Authority showed that it misinterpreted or applied the legal test it was required to apply.
3. The Authority fell into jurisdictional error in that it acted irrationally or illogically or unreasonably.
Particulars
(a) By reason of the matters set out in the particulars to the other Grounds of this application, the Authority acted irrationally or illogically or unreasonably.
At the hearing, both the Applicant and the Minister were represented by Counsel. Both parties provided substantive oral submissions in addition to the written submissions previously filed. The Court also made orders at the conclusion of the hearing for the filing of further submissions addressing whether ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 (ASV16) had any bearing on the issues in this case.
As the Minister submitted in the Minister’s Supplementary Submissions addressing ASV16, the facts of ASV16 differ from the present case and the Full Court affirmed a number of principles which are not controversial. The Court has nonetheless considered the submissions the parties filed in relation to ASV16.
Ground 1
The Applicant argues in this ground that there was information before the Authority which was “critical” and was not referred to by the Authority or “grappled with”. The relevance of this information was explained to the Authority by the Applicant, and the Authority overlooked it. The particular information that the Applicant relies upon is found in the DFAT Country Report 2015 – Sri Lanka (DFAT Report)[38]. In particular, the Applicant relied on the following portion of the DFAT Report:
Although there are no reliable figures available, some criminal suspects have died while in custody. In some instances, police argued the deaths were in self-defence. Deaths in custody are generally unrelated and isolated in nature. Disciplinary and legal actions related to such incidents have been recorded.
[…]
In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections. Incidents of torture are not confined to any particular ethnic, religious or political group.[39]
(Emphasis added)
[38] CB 152-177.
[39] CB 171, at [4.11] and [4.17].
The Applicant then refers to [28] of the Authority’s decision:
While there are reports of failed Tamil asylum seekers or other Tamils returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has certain actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker is not enough, in my view, to give rise to a real chance of harm on return. While I accept that the applicant and his father were investigated in relation to suspected links with the LTTE in 2007, I do not accept that the applicant remained under suspicion after that time, nor do I accept that there is a real chance that the past investigation would result in the applicant being subjected to serious harm now or in the reasonably foreseeable future. I do not accept that the applicant will be imputed with pro-LTTE or anti-government dissident beliefs by the authorities because of his family background, or for any other reason, and I find that the applicant does not face a real chance of persecution on returning to Sri Lanka.
(Emphasis added)
The Minister referred the Court to the case of CED15 v Minister for Immigration & Border Protection [2018] FCA 451 (CED15) in which a similar argument to that presented in Ground 1 to this Court was run. In CED15, the appellant argued:
The complaint made by the appellant was that particular sentences contained in the country information he had put before the Tribunal provided a basis for a conclusion that torture of prisoners was not necessarily confined to any particular ethnic, religious of political group and these particular sentences were not considered. The submission was that these isolated sentences provided a basis for a conclusion that there was a “general culture of violence and risk for people in detention”. The sentences particularly relied upon before this Court were contained in the pre-hearing submission dated 11 September 2015. Counsel for the appellant, in oral submissions, said that the Tribunal should have asked itself the question: “Is the applicant at risk of serious harm or persecution for reason of membership of a particular social group, namely prisoners or people in detention?”.[40]
[40] CED15, at [42].
Counsel for the Applicant did not argue that the Authority should have asked itself whether the Applicant was at risk of serious harm or persecution for reason of membership of a particular social group, namely prisoners or people in detention. He said that this was an important distinction in the present case. Counsel submitted at hearing that, rather, having rejected the Applicant’s primary claims, the Authority was obliged to have regard to “what remained” (which was that the Applicant was a prisoner or person in detention). Nonetheless, in the Applicant’s Supplementary Submissions, the Applicant submitted:
[…] the information about the prison conditions in the present matter went to the basic question of whether the applicant may suffer serious or significant harm. It need not be targeted harm at him for his particular profile, nor harm as a result of generally or even universally poor prison conditions, but harm suffered by him as a prisoner, in a country and culture where violence extending to torture and death were a feature of life in prison.[41]
[41] Applicant’s Supplementary Submissions, at [18].
In the Court’s view, Ground 1 is, in effect, of the same vein as the submissions put in CED15. The Applicant is submitting that the Authority ought to have inferred a claim that the Applicant, as a prisoner or a person in detention (whether that was a particular social group or not), was at serious risk or chance of harm on the basis of two sentences in the DFAT Report.While the argument is not in the same terms as what was put in CED15, it is on the same premise as what was argued unsuccessfully in CED15.
In CED15, the Court stated as follows:
The last sentence was one of the principal sentences relied upon by the appellant. A few matters should be noted at this point. First, the submission that this was not taken into account must be rejected. The Tribunal said it took into account the information submitted by the appellant at [99] of its reasons and it referred several times to the DFAT Report and relied upon it in reaching its conclusions (for example at [97]). Secondly, the heading to the two page section of the submission in which this sentence is found and the chapeau to the quote set out above reveal that the appellant’s claim was that he feared mistreatment in detention because he was Tamil and, implicitly, that he was more likely than other detainees to be mistreated because he was Tamil. Thirdly, no claim was articulated to the Tribunal by the appellant or his legal representatives that the claim was that he faced a risk of harm or persecution because he was a member of a particular social group, namely prisoners or people in detention (divorced from being Tamil or having some actual or imputed anti-government or pro-LTTE sentiment) or that this claim (if made) was different to the claim he was advancing and not subsumed in it. Fourthly, the argument that the Tribunal had to consider the particular social group of prisoners was not put to the Federal Circuit Court. Fifthly, this argument is not covered by Ground 1 particular (d) which is directed to an asserted failure to take into account “well known and thorough studies of violence against Tamils including returnees”. Finally, leave was not sought to amend the notice of appeal.[42]
[42] CED15, at [46].
The “last sentence” referred to in CED15 was the same sentence in the DFAT Report that the Applicant refers to in this matter and emphasised above – “Incidents of torture are not confined to any particular ethnic, religious or political group”[43]. His Honour Justice Thawley in CED15 continued at [59] as follows:
As to the submission that the Tribunal ought to have asked itself the question of whether there was a risk of serious harm or persecution by reason of membership of a particular social group of prisoners or people in detention and to supplement what I have said at [46] above:
(1) No attempt was made by the appellant to identify whether there was a particular social group as identified in the oral submission put for the first time to this Court.
(2) This was not a claim which was articulated to the Tribunal as a claim separate to that of being a Tamil prisoner or a detained returned asylum seeker or which arose “squarely” on the material before the Tribunal. If the claim arose squarely on the material before the Tribunal, it might be expected to have been put squarely to the Tribunal and the Federal Circuit Court or identified somewhere in the notice of appeal to this Court, Ground 1(d) of which centred on “well-known and thorough studies of violence against Tamils including returnees” (emphasis added) and not on prisoners generally. The appellant was represented before the delegate, the Tribunal, the Federal Circuit Court and this Court.
(3) There were claims made by the appellant that he might be mistreated because of his Tamil ethnicity, as a returned asylum seeker and because of his connection with the four key events identified by the delegate and the Tribunal. The written submissions of 11 September 2015 contain the occasional reference to mistreatment in the prison system generally. The Tribunal dealt with that point at a similar level of generality in its reasons. It cannot be criticised now for dealing with it at that level given the complete lack of prominence with which the claim might be found in the material submitted to the Tribunal.
(4) The written submission of 11 September 2015 was predominantly directed to there being a risk of being tortured or mistreated in detention or in a Sri Lankan prison due to the appellant being a Tamil (under the heading “Tamils in Sri Lanka”) and as a failed asylum seeker (under the heading “The current situation in Sri Lanka: Returned Failed Asylum Seekers”). The Tribunal’s rejection at [101] of risks of harm arising from the appellant’s “general claims as a Tamil” and the rejection of his claim as a failed asylum seeker subsumed the claim now sought to be advanced. The appellant’s claim, if anything, was that the additional characteristics of being Tamil and a returned failed asylum seeker made him more likely to be mistreated in detention or as a prisoner than would otherwise be the case. The claim of there being a risk of harm as a consequence of being a prisoner (with no particular attributes other than being a prisoner) was subsumed in the claim of being a prisoner with the claimed attributes.
(5) In any event, the Tribunal considered that, if the appellant were convicted of an offence under the Sri Lankan Immigrants and Emigrants Act on his return, the penalty most likely to be imposed would be a fine of between 5,000 and 50,000 rupees, which the Tribunal did not accept constituted “significant harm as defined in the Act”: at [113]. The Tribunal considered the risk that the appellant would be imprisoned (after any initial detention), rather than fined, was remote: at [113].[44]
[43] CB 171, at [4.17].
[44] CED15, at [49].
For the reasons outlined in CED15, the Applicant must also fail in this matter. While the Applicant did not argue that the Authority ought to have asked itself the question of whether there was a risk of serious harm or persecution by reason of membership of a particular social group of prisoners or people in detention, it was argued that the Authority ought to have considered “what remained”. What remained was whether the Applicant was at risk or chance of harm for reason of being a person in detention or imprisoned. This is substantively no different to the argument advanced by the appellant in CED15.
It is not to the point that the Applicant in this matter was unrepresented before the Authority (which the Counsel for the Applicant made some reference to at the hearing). It is noted that the Applicant did have assistance from a lawyer at the interview with the Delegate. Nevertheless, it remained for the Applicant (represented or otherwise) to advance his claims and evidence from the preliminary stage[45]. Were it the case that the Applicant was advancing a claim that, in general, he would be at risk if detained on return (distinct from a heightened risk because of his LTTE associations and ethnicity), it was necessary for this to be, at the very least, differentiated from his “primary claims”. The Court does not consider that the Applicant’s lack of legal representation is sufficient to distinguish this matter from CED15.
[45] Section 5AAA of the Act.
In the Authority’s Decision, the Authority confirmed at [5] that it had had regard to the material referred by the Secretary. The Authority expressly noted at [6] that the DFAT Report was before the Delegate and was not “new information”, it can be inferred that the Authority had considered it. So much was observed in CED15.
In CED15, some emphasis was placed on whether the claim was properly articulated. It is accepted that the Authority is required to consider express claims and those that implicitly arise on the materials before it[46]. It appears that the Applicant is relying on the “implicit” claim. The question is whether it “clearly arises”. The fact that there were two isolated passages in the DFAT Report does not, in the Court’s view, suggest that any claim “clearly arose”. Something more was required.
[46] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
The Applicant was represented before the Delegate and does not appear to have raised any claim relating to conditions in prison in general, or of being tortured, if detained generally.
In the Applicant’s September 2016 Submission (which attached the DFAT Report[47]), next to the passages cited at [26] above, the Applicant had written the word “DANGER”[48]. He wrote this generally and did not point to the specific passages emphasised by Counsel for the Applicant. It was a “general” indication to the passages at [4.11] and [4.17] of the DFAT Report.
[47] CB 151-176.
[48] CB 170, at [4.11] and [4.17].
In the Applicant’s September 2016 Submission[49], the Applicant stated as follows:
[49] CB 149-150.
I refer to the DFAT Report dated 16 February 2015 which is reliable country information on Sri Lanka evinces that my client’s refugee claims are consistent the reliable country information and that Report supports the following. They are:
1. Failed asylum seekers, especially Tamils, will be detained on arrival for questioning;
2. There is possibility of ill-treatment during the questioning process although it would be purpose of his illegal departure from Sri Lanka;
3. I am a Tamil from the East, domiciled in the LTTE controlled areas, with past suspect profile/record including my past detentions and questionings as a Tamil with the LTTE suspected profile; and
4. Sri Lankan security forces maintain effective control throughout Sri Lanka; and
5. There is a possibility of interrogation and ill-treatment for me due to my profile than other Tamils return as failed asylum seekers.
[…]
On my arrival at the airport in Colombo, I would be questioned by the CID and I will be persecuted and prosecuted as well for my illegal departure as a Tamil male with the suspected LTTE profile/other political profile. There is information before the DIBP that there are potential risks of physical violence in prison. [50]
(Without alteration)
[50] CB 149-150.
The Delegate’s Decision and the Applicant’s submissions to the Authority reveal that the context in which the Applicant based his claim to face harm, or “physical violence” in detention was because of him being a “Tamil male with the suspected LTTE profile/other political profile”. The physical violence in prison is inextricably linked to the Applicant’s claim that he will be detained because of the particular characteristics he claimed. The Authority dealt with the claim as put – this is clear from [28] of the Authority’s Decision. The Applicant advanced the claim on the basis of a past LTTE association and the Authority directly addressed that claim. Again, the fact that the Applicant was not represented before the Authority is not of significant weight. The Applicant put together a detailed submission to the Authority which made a general reference to mistreatment in the prison system generally, and in a context where the claim as advanced was that he would be prosecuted for his “illegal departure as a Tamil male with the suspected LTTE profile/other political profile”[51] (emphasis added).
[51] CB 150.
The Authority specifically found that a person of the Applicant’s profile would not suffer serious or significant harm as a result of any detention. The Authority’s findings on these specific claims ([21]-[27] and [33]-[34]) addressed the Applicant’s assertion he would be at greater risk as a Tamil male with a suspected LTTE profile. As in CED15, the Authority’s findings on these matters therefore subsumed the need to make a finding generally on whether the Applicant was at risk of harm if detained generally.
It is also the case that the Authority expressly found that there was no real chance that the Applicant would receive a custodial sentence[52]. Therefore the Authority considered the risk that the Applicant would be imprisoned after the “brief detention” and found there was no real risk or chance. Justice Thawley identified this as one of bases on which the Appellant in CED15 could not succeed[53].
[52] CB 208, at [24] and [33].
[53] CED15, at [59(5)].
The Authority did not fail to take into account a relevant consideration. The Applicant’s argument that the Authority failed to properly consider two sentences in the DFAT Report, when considered in the context of the Authority’s decision and the circumstances as a whole, cannot be accepted and, in any event, cannot be said to have been “critical” in light of the other findings made by the Authority.
Ground 1 fails.
Ground 2
Ground 2 argues that the Authority misapplied the “real chance” and “real risk” test, in that it imposed a higher standard than that required. The Applicant pointed to the Authority having accepted certain parts of the Applicant’s claims, such as that he was detained and beaten for three days with his father in 2007 because his father’s vehicle was found in the possession of the LTTE[54], that unidentified armed groups, most likely paramilitaries, continued to inquire after him[55], that he was threatened and assaulted on one occasion by opposition members most likely of the TMVP[56] and that if he continued to campaign with the TNA on return he may face low level harassment[57]. It was argued that the Authority made these findings, yet it still found that the Applicant was not at chance or risk of harm, which demonstrates that it misapplied the test.
[54] CB 205, at [13].
[55] CB 205, at [14].
[56] CB 206, at [17].
[57] CB 206-207, at [19].
The Applicant pointed to the Authority stating that:
The Guidelines state that persons suspected of having certain LTTE profiles, or who have family links to people with these profiles, may be in need of international refugee protection, depending on their individual circumstances. Such profiles include, relevantly, former supporters who were involved in sheltering or transporting personnel or providing funding or other support to the LTTE.[58]
[58] CB 204-205, at [12].
The Applicant submitted that it should be inferred that the Authority, by its conclusions and findings taken together with the material concerning the culture of violence that was depicted in the country information, was “looking not for a real chance of serious harm, but what in truth was really a higher risk”. The Applicant referred to the following passage in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) at [19] per Gaudron J:
If an Applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality […]
The Minister submitted that whether the Applicant was in need of protection was to be assessed on the “individual circumstances” which is exactly what the country information expressed and how the Authority approached its task in this matter. The Minister submitted that there was nothing to suggest the Authority misapplied the real chance test. It had regard to the country information and the Applicant’s individual circumstances to determine if there was a real chance of harm.
The mere fact that the Authority made findings accepting the Applicant’s account of events does not mean, on that basis alone, that there was a “real chance” of the events or any harm occurring on return. In Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, it was stated:
56[…] The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
57. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events […]
A reading of the Authority’s decision as a whole clearly indicates that the Authority determined that there is no real chance the Applicant will face serious harm, by making conclusions on the circumstances surrounding the past events (which it accepted occurred). After each of the findings that the Applicant refers to in his submissions, the Authority goes on to explain what the country information or the Applicant’s own evidence suggested was the reason for, or why, the incident happened. This was the “integral part” of the real chance test whereby the Authority assessed whether, based on past events, there was a real chance of harm and which ultimately led the Authority to find that the Applicant did not have a profile which would give rise to a real chance of harm.
The Applicant is, in effect, disagreeing with the Authority’s findings that he did not possess a particular profile or what his “individual circumstances” were.
Textually, the Authority’s decision also does not suggest that it adopted an assessment based on probability or that it imposed a higher standard than that identified in Chan. The Authority referred to matters, and accepted, that there was a chance of harm in such circumstances. However, it expressly found the Applicant did not have such a profile or his circumstances reflected that which would be at real chance of harm[59]. For example, the Authority stated as follows:
[…] While I accept that some Tamils continue to be at risk of serious human rights abuses that would constitute persecution, in view of the country information and the applicant’s credible evidence about his own circumstances, I am not satisfied, given his particular profile, that there is a real chance that he would be harmed on return to Sri Lanka now or in the reasonably foreseeable future because of actual or imputed support for the LTTE for any reason now or in the reasonably foreseeable future.[60]
[59] CB 206, at [15].
[60] CB 206, at [16].
It is apparent that the Authority was aware of what constituted a “real chance”. It made reference to country information which indicated what persons (or what profiles) would be at risk or chance of harm. Simply put, the Authority did not accept that the Applicant’s individual circumstances gave rise to a profile that the country information indicated would face a real chance of harm. As the country information indicated, whether there was a “real chance” was dependent upon the “individual circumstances”. Here, the Authority considered the Applicant’s individual circumstances and was not satisfied that they demonstrated he was of ongoing interest to the Sri Lankan authorities or had the requisite profile which the country information indicated would give rise to a real chance of harm.
The Authority’s reasoning was entirely orthodox and does not indicate that there was any misapplication or misunderstanding of the real chance test.
Ground 2 is dismissed.
Ground 3
Ground 3 links to both Ground 1 and Ground 2. The Applicant argues that if it is not accepted that the Authority failed to consider the evidence, it was nevertheless illogical or unreasonable for the Authority to conclude that it did. Further, if the Authority did not misapply the real chance test, it was unreasonable or illogical for the Authority to conclude that the Applicant did not have a real chance of harm in light of it having accepted the Applicant’s account of previous instances of harm.
The threshold of illogicality and unreasonableness is a high bar. It must be shown that no reasonable decision-maker could have arrived at the same conclusion in light of the same facts and circumstances. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248, Crennan and Bell JJ stated, at [58]:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims.
For many of the reasons set out in relation to Ground 1 above, it cannot be said that the Authority acted unreasonably or illogically in finding that the Applicant did not face a real chance or real risk of harm if he were to be detained as a result of his illegal departure.
Here, in circumstances where the Applicant’s claim to face harm in prison generally was not put to the Authority in any substantive way, it was not unreasonable for the Authority to find that, on the basis of the Applicant’s lack of profile and that his detention would be short (if he was detained in a prison at all), that notwithstanding poor conditions in prison, he would not be subject to any serious or significant harm.
In effect, the Applicant is disagreeing with the Authority’s decision. The weight that the Authority gives to country information is a matter for the Authority, and here the Applicant is simply cavilling with the fact that the Authority does not appear to have placed weight on two sentences of the DFAT Report. There was nothing arbitrary or capricious in the Authority’s findings concerning the harm the Applicant may face as a result of his illegal departure and the findings have a logical and probative basis in the country information the Authority extensively cites and refers to.
For the same reasons as provided in Ground 2, there was nothing illogical or unreasonable in the Authority finding that the Applicant did not face a real chance of harm, notwithstanding it had accepted that the Applicant had been the subject of harm previously. As noted, the test was whether the Applicant would face harm in the future. The Authority made findings that the Applicant would not face harm in the future as a result of its assessment of the previous harm.
Each of the Authority’s findings had a logical and reasonable basis. It cannot be said that no reasonable person could not have formed the same view as the Authority. In particular, the Authority’s assessment of whether the Applicant was of interest to the Sri Lankan authorities in light of the findings it made about past harm were open to be made. It was open for the Authority to find that the fact that the Applicant was not a member or supporter of the LTTE, that many Tamils had interaction with the LTTE in a similar way to his father, that the Applicant was released after three days of detention, that the monitoring he received after was “routine”, that if the Applicant were of interest he would have been subjected to more serious scrutiny, that there was nothing to suggest the Applicant would be subject to new scrutiny and that there were changed political conditions. Those findings provided a probative basis for the Authority to, when balanced against the accepted past events, conclude there was no real chance in the future.
Ground 3 is dismissed.
Conclusion
The Amended Application does not identify any jurisdictional error.
The application, as amended, is dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 27 May 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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