EDL18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2024] FedCFamC2G 1030

•

25 October 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EDL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1030

File number(s): ADG 305 of 2018
Judgment of: JUDGE LUCEV
Date of judgment: 25 October 2024
Catchwords: MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – citizens of Sri Lanka of Tamil ethnicity – claims of persecution on basis of ethnicity, imputed political opinion as Liberation Tigers of Tamil Eelam supporters and failed asylum seeker status – single unparticularised ground of review – further matters raised at hearing – where allegations of bribery at airport on departure from Sri Lanka – whether bribery allegations subsumed in findings of greater generality – criticism of country information relied upon – whether choice of country information a matter for the Authority –whether evidence of views of Refugee Council of Australia –whether claims made in relation to refugee resettlement in France – whether accepted as refugees by UNHCR – whether determinations by foreign country or non-governmental organisations determinative or mandatory relevant consideration – whether children born in or living in Australia basis for finding of jurisdictional error – whether Court required to verify documents concerning an applicant’s arrest in Sri Lanka – whether allegations of uncle paying a bribe to obtain one applicant’s  release from arrest and subsequent abduction of uncle  considered by Authority – whether allegation of sexual assault or harassment whilst under arrest in Sri Lanka new information – whether discrete basis for finding in relation to no harm on return to Sri Lanka – whether jurisdictional error otherwise – whether material jurisdictional error
Legislation:

Immigrants and Emigrants Act 1948 (Sri Lanka)

Migration Act 1958 (Cth) ss 5H, 5J, 36, 54, 65, 473CA, 473CB, 473DC, 474, 476
Cases cited:

AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1283

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

BIK18 v Minister for Home Affairs [2019] FCA 788

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

BUY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1511

BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531

DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

GKH18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 273 ALR 223; (2011) 85 ALJR 327; (2011) 119 ALD 1

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 327 ALR 8; (2015) 148 ALD 206; (2015) 90 ALJR 197

SGBB vMinister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411

WZATU v Minister for Immigration [2016] FCCA 2247; (2016) 314 FLR 416

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

WZAWB v Minister for Immigration [2016] FCCA 1345; (2016) 309 FLR 398
Division: Division 2 General Federal Law
Number of paragraphs: 78
Date of last submission/s: 18 March 2024
Date of hearing: 18 March 2024
Place: Perth
Applicants: In person with the assistance of an interpreter
Counsel for the First Respondent: Ms C Oppel
Solicitor for the Respondents: Australian Government Solicitor
Second Respondent: Submitting appearance, save as to costs

ORDERS

ADG 305 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

EDL18

First Applicant

EDN18

Second Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:

1.The originating application filed on 10 August 2018 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

  1. Before the Court is an application for judicial review (“Judicial Review Application”) under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively). The Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate”) of the first respondent, the now Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant the applicants, EDL18 and EDN18 (together “Applicants”), Safe Haven Enterprise visas (“SHE Visa/s”). The Authority Decision is in the Court Book (“CB”) at CB 449-471. At hearing before the Court the Court Book (“CB”) was marked as Exhibit 1.

    BACKGROUND

  2. The background to the matter prior to the Authority Decision is as follows:

    (a)EDL18 is a male and EDN18 is a female who are husband and wife respectively: CB 36, 39 and 56-57;

    (b)the Applicants are nationals of Sri Lanka: CB 35 and 55;

    (c)in May 2013 the Applicants arrived at Christmas Island by boat as unauthorised maritime arrivals: CB 41, 49, 63 and 70;

    (d)on 1 September 2016 the Applicants were invited to apply for SHE Visas: CB 74;

    (e)on 31 January 2017 the Applicants lodged an application for SHE Visas: CB 79ff;

    (f)the Applicants claimed to fear harm on the basis of:

    (i)their Tamil ethnicity;

    (ii)imputed political opinion as Liberation Tigers of Tamil Eelam (“LTTE”) supporters; and

    (iii)their failed asylum seeker status if returned to Sri Lanka;

    (g)on 10 April 2017 the Applicants attended interviews with the Delegate and provided further details as to their claims: CB 324-341;

    (h)on 1 November 2017:

    (i)the Delegate’s Decision was to refuse to grant the Applicants SHE Visas: CB 324-355; and

    (ii)the Delegate issued a certificate under s 473GB of the Migration Act regarding certain United Nations High Commissioner for Refugees (“UNHCR”) materials: CB 356; and

    (i)on 3 November 2017 the Delegate’s Decision was referred to the Authority pursuant to s 473CA of the Migration Act.

    AUTHORITY DECISION

  3. On 22 November 2017 the Applicants provided written submissions and further information to the Authority (“Applicants’ Submissions”): CB 434-443.

  4. On 27 July 2018 the Authority Decision was to affirm the Delegate’s Decision not to grant the Applicants SHE Visas: CB 449-471.

  5. In the Authority Decision the Authority:

    (a)had regard to the material given to it by the Secretary under s 473CB of the Migration Act;

    (b)had regard to the Applicants’ Submissions to the extent that they discussed evidence which was before the Delegate, referred to case law and contained argument, finding that that did not constitute new information: CB 450 at [4];

    (c)noted that the Applicants’ Submissions also referred to country information:

    (i)some of which was before the Delegate and which was not therefore new information (within the meaning in s 473DC of the Migration Act), and which was therefore taken into account by the Authority: CB 450 at [5];

    (ii)which included references to the corruption ranking of Sri Lanka in 2009 and 2016 and the UNHCR refugee status determination process, which information appeared to pre-date the Delegate’s Decision and in relation to which the Applicants did not satisfy the Authority that the information was not and could not have been provided to the Delegate or that it was credible personal information that was not known, and which had it been known it may have affected the consideration of the Applicants’ claims: CB 450 at [5]-[7];

    (d)was not satisfied that there were exceptional circumstances to justify considering the new information referred to at (c) above: CB 450 at [7];

    (e)summarised and then set out the Applicants’ protection claims in detail: CB 451-457 at [9]-[23];

    (f)accepted the Applicants were Tamil: CB 453 at [10];

    (g)found the Applicants’ evidence to be largely consistent in relation to the adverse attention they each experienced from the Sri Lankan authorities: CB 458 at [26];

    (h)found that the Applicants’ claims were generally consistent with the country information and that some claims were supported by the documents they supplied: CB 458 at [26];

    (i)accepted a number of the Applicants’ claims as set out in their SHE Visa application and interviews: CB 458 at [26], including (as summarised at CB 466 at [52]) that:

    (i)the Applicants lived in areas controlled by the LTTE during the civil war in Sri Lanka;

    (ii)EDL18’s relatives were members of and fought for the LTTE;

    (iii)EDL18 was asked to join the Karuna Group (“KG”); and

    (iv)EDN18 was detained and tortured in 2008 and was under suspicion of involvement in bomb blasts carried out by the LTTE in 2007;

    (j)did not accept all of the Applicants’ claims: CB 458 at [26], as follows:

    (i)although the Authority accepted three young men were shot and killed near EDL18’s house and a white van turned up at the children's home where he was a volunteer, it did not consider his other claims that the KG also targeted EDL18, wanted to kill him, and were searching for him, were credible: CB 458 at [27];

    (ii)although the Authority was prepared to accept that EDL18’s mother was asked about his whereabouts once or twice shortly after he left Sri Lanka in 2006, it rejected his claims of other visits including any visits to enquire about EDL18’s whereabouts: CB 459 at [29];

    (iii)the Authority rejected EDN18’s claim that the beating of her uncle and her father, her uncle's abduction, her other uncle's move to France, and her younger brother's move to Qatar, were connected with her and the Sri Lankan authorities' interest in her due to and following her January 2008 arrest and release: CB 459-460 at [30]-[34];

    (iv)although the Authority was prepared to accept that the Sri Lankan authorities occasionally questioned EDN18 after her release, and asked her family including her uncle about her whereabouts once or twice shortly after EDN18 left Sri Lanka, it rejected EDN18’s claims that after her release the Sri Lankan authorities made ongoing enquiries about her with her family, relatives, visitors and work colleagues and that she was in hiding in Colombo, and did not accept that the Sri Lankan authorities had any further interest in her in relation to the 2007 bomb blasts or her January 2008 arrest: CB 460-461 at [32]-[33];

    (v)rejected EDN18’s claim that her family had been tortured about getting a death certificate for her uncle: CB 461 at [34]; and

    (vi)although the Authority accepted EDN18 was stripped and tortured during her arrest and detention in January 2008, in the absence of any claim by her that she was also raped, it was not prepared to assume that was the case: CB 461-462 at [35];

    (k)accepted that, if returned to Sri Lanka, the Applicants would be considered failed asylum seekers: CB 462 at [36];

    (l)after making the above findings, and considering the relevant country information, was not satisfied that the Applicants would face a real chance of harm on the basis of any links to the LTTE, for any imputed political opinions, because of the occupation of EDL18’s land, as Tamils from the north and east, or because of their relationship, if returned to Sri Lanka, now or in the reasonably foreseeable future: CB 464-468 at [46]-[57];

    (m)in particular, considered it significant that the Applicants left Sri Lanka 11 and 9 years ago respectively, that the Sri Lankan authorities have not made enquiries about them since shortly after they left Sri Lanka, and country information indicated that the security situation and general conditions for Tamils has improved markedly: CB 467 at [54];

    (n)found that the evidence before it did not support a finding that there was a real chance the Applicants would face harm for the reason that they were failed asylum seekers who have lived in Malaysia, Indonesia or Australia: CB 469 at [66];

    (o)concluded that the Applicants did not have a well-founded fear of persecution and did not meet the requirements for consideration as a refugee in ss 5H(1) and 36(2)(a) of the Migration Act: CB 470 at [68]; and

    (p)was, for the same reasons found in relation to the consideration of s 36(2)(a) of the Migration Act, not satisfied that the Applicants would face a real risk of significant harm for the purposes of s 36(2)(aa) of the Migration Act: CB 471 at [74].

    JUDICIAL REVIEW APPLICATION

    Ground

  6. The Judicial Review Application contains a single ground of application as follows:

    1.The Immigration Assessment Authority made a jurisdictional error in the determination of the case.

    Litigation history in this Court

  7. In light of oral submissions made by the Applicants at hearing it is appropriate to set out the litigation history of this matter, which is as follows:

    (a)the Judicial Review Application was filed on 10 August 2018 in the Adelaide Registry of the Court (then the Federal Circuit Court);

    (b)on 20 August 2018 the Minister filed a Response seeking that the Judicial Review Application be dismissed with costs on the basis that Authority Decision was not affected by jurisdictional error;

    (c)on 19 September 2018 a Registrar of the Court made an order in Chambers (“Registrar’s September 2018 Orders”) by consent, which included orders that:

    (i)the “Applicant” (sic) have leave to file and serve any amended Judicial Review Application, and such further materials sought to be relied on at hearing, by 14 December 2018;

    (ii)the Judicial Review Application be listed for directions on 28 June 2019;

    (iii)the Judicial Review Application be listed for hearing on a date to be advised;

    (d)according to the electronic court file:

    (i)the directions hearing on 28 June 2019 was adjourned “Pre-Hearing”;

    (ii)on 5 July 2019 the parties were sent a notice indicating that the matter had been listed for hearing in Adelaide on 19 October 2020; and

    (iii)on 19 July 2019 an interpreter was booked for the 19 October 2020 hearing, with the interpreter booking form indicating that it was to be heard before Judge Heffernan;

    (e)on 23 January 2020 the parties were sent an email by the Chambers of Judge Heffernan attaching a notice from the Court advising that the hearing on 19 October 2020 had been vacated and the matter adjourned to a date and time to be fixed by the Registry, with the parties to be notified in due course of a new listing date;

    (f)more than three years then passed, and it was not until May 2023 that the matter was allocated to the docket of the presently presiding Judge, and on 23 May 2023 a directions hearing was held, at which an interpreter assisted the Applicants, and at which orders were relevantly made in the following terms (“Court’s May 2023 Orders”):

    2. Orders 2-7 and 9 of Registrar Parkyn’s orders of 19 September 2018 be set aside, and in lieu thereof order that:

    a) the applicants file and serve any amended originating application, further affidavits, and an outline of submissions by 22 December 2023;

    b) the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 2 February 2024; and

    c) the matter be listed for final hearing by video link on 18 March 2024 at 10.00am AWST/12.30pm ACDT before Judge Lucev.

    3.         ….

    AND THE COURT NOTES THAT:

    A. ….

    B. Having regard to the recent Federal Court judgment in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the Court has explained to the applicants:

    a) the need to establish material jurisdictional error in the Immigration Assessment Authority decision;

    b) the nature of jurisdictional error;

    c) the necessity to provide grounds, properly particularised, alleging what the jurisdictional error or errors committed by the Immigration Assessment Authority were;

    d) that a failure to specify and particularise jurisdictional error in the grounds may result in the dismissal of the originating application or any amended originating application; and

    e) that if the originating application or any amended originating application is dismissed at hearing the applicants may have to pay the Minister’s costs.

    (g)the Applicants filed no further documents pursuant to the Court’s May 2023 Orders, or otherwise;

    (h)on 17 January 2024 the Minister filed an outline of submissions pursuant to the Court’s May 2023 Orders; and

    (i)at the final hearing of the matter on 18 March 2024 the Applicants were assisted by an interpreter, and the the Court:

    (i)noted that the Applicants had not filed any materials pursuant to the Court’s May 2023 Orders;

    (ii)heard oral submissions from the Applicants and the Minister. Albeit that the Applicants did not file any materials they were permitted to make oral submissions, consistent with Federal Court authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J; see too BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 (“BYP16”) at [35] per Wheelahan J; GKH18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125 (“GKH18”) at [26] per Banks-Smith J; BIK18 v Minister for Home Affairs [2019] FCA 788 (“BIK18”) at [3] per McKerracher J;

    (iii)referred to what had been said at the 23 May 2023 directions hearing as to the Applicants needing to establish material jurisdictional error in the Authority Decision, and the nature of jurisdictional error, and that the Court was not re-hearing the merits of the SHE Visa applications; and

    (iv)told the Applicants that the final hearing was not an opportunity to re-run their merits case, or to run a new merits case.

    Consideration

    Material jurisdictional error

  1. For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the plurality in the High Court said that:

    15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

    16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

    Not merits review

  2. The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review… must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and, as such, the Court does not undertake a fresh merits review of an applicant’s case. Further, the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46] per French, Sackville and Hely JJ.

    Onus of establishing jurisdictional error

  3. It is well established that an applicant for judicial review under s 476 of the Migration Act bears the onus of establishing jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 273 ALR 223; (2011) 85 ALJR 327; (2011) 119 ALD 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 327 ALR 8; (2015) 148 ALD 206; (2015) 90 ALJR 197 at [24] per French CJ, Bell, Keane, and Gordon JJ.

    Opportunities to file material asserting jurisdictional error

  4. The Court notes that the Applicants were given opportunities to file material setting out an alleged jurisdictional error in the Authority Decision. The first opportunity was on the filing of the Judicial Review Application in August 2018, but the Applicants set out no more than a single unparticularised ground of review asserting that the Authority “made a jurisdictional error in the determination of our case”. The second opportunity was as a consequence of the Registrar’s September 2018 Orders, which were made by consent, which permitted the Applicants to file an amended Judicial Review Application and further material by 14 December 2018, but they did not do so. The third opportunity was as a consequence of the directions hearing on 23 May 2023 at which the Applicants had the assistance of an interpreter, and at which the Court’s May 2023 Orders were made permitting the Applicants to file an Amended Judicial Review Application, any further affidavits and an outline of submissions by 22 December 2023. The Applicants did not file any of those documents. At the 23 May 2023 directions hearing the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to the Applicants, and the Applicants were told that the Court did not engage in merits review of the Authority Decision. At the final hearing the nature of jurisdictional error, and the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were all again explained to the Applicants. It was only at the final hearing that the Applicants made oral submissions as to what they considered were the errors in the Authority Decision. Those oral submissions are set out and dealt with at [13]-[74] below. In the above circumstances, the Court is satisfied that the Applicants had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J; DQQ17 at [8]-[9] per Colvin J; BYP16 at [35] per Wheelahan J; GKH18 at [26] per Banks-Smith J; BIK18 at [3] per McKerracher J.

    Alleged errors - ground 1 and the oral submissions of the Applicant

    Ground 1

  5. Ground 1 is a single bare unparticularised ground of review, and the failure to go beyond the bare assertion of jurisdictional error in ground 1, and the failure to particularise ground 1, would, without more, be sufficient reason to warrant this Court dismissing ground 1 of the Judicial Review Application: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.

    Oral submissions

  6. In this case the Applicants (both EDL18 and EDN 18 made oral submissions at the final hearing) have, in response to an invitation from the Court to do so, made oral submissions (including oral submissions in reply) at the final hearing as to what they considered were the errors in the Authority Decision: see Transcript pp 3-7 and 12-14, and the Court now turns to deal with those alleged errors.

    Leaving via the airport

  7. At hearing the Applicants asserted that they had given money or paid agents to make arrangements to enable the Applicants to get through the airport in Sri Lanka, and that that was how they came to leave Sri Lanka: Transcript, pp 3 and 7. The Applicants asserted that this was a “usual practice” in Sri Lanka, but that “these people are not accepting that”: Transcript, p 7, the reference to “these people” in context is plainly a reference to the Delegate and the Authority.

  8. The Court does not have jurisdiction to review the Delegate’s Decision: Migration Act, s 476(2), but it assists to set out the factual context with respect to the circumstances in which the Applicants left Sri Lanka by air.

  9. In his SHE Visa application EDL18 declared that he left Sri Lanka from Colombo Airport legally using her passport: CB 101 (at Q 50) and 338.

  10. In her SHE Visa application EDN18 declared that she left Sri Lanka from Colombo Airport legally using her passport: CB 127 (at Q 50) and 331.

  11. In a statutory declaration made by EDL18 on 19 January 2017 (“EDL18’s Statutory Declaration”) and attached to the SHE Visa application at CB 195 at [12]-[13] EDL18 declared that:

    12. When I left from Sri Lanka my trip was organised by an agent. One person saw me off at the airport in Sri Lanka and another picked me up in Malaysia. The person who received me at the airport in Malaysia took me to his house where I stayed for a few days.

    13. The agent took my passport and told me I will arrange for a new visa. I paid 6,500 Ringitt to him to arrange that. But after paying that money I only met him once more. He said that he would get the visa and nothing has happened. He gave me his number but when I called it was not working.

  12. In a statutory declaration made by EDN18 on 19 January 2017 (“EDN18’s Statutory Declaration”) and attached to the SHE Visa application at CB 204 at [46]-[47] EDN18 declared that:

    46. I was worried about how I would get out of the airport. My family told me that it was all organised and that someone would assist me to depart. When the time came to leave my uncle … [name deleted] came to collect me and the agent joined us also.

    47. The day of my departure from Colombo airport was the first time I had been there. The agent arranged everything, he even held the passport. I was standing at the counter with him but I didn't say anything. He spoke to them in Singhala. He travelled with me to Malaysia but we sat separately. After we got to Malaysia and cleared the airport he gave me back my passport and took me to the place where I lived in Malaysia.

  13. In a comprehensive submission prepared by a migration agent on behalf of the Applicants (and  which appears at CB 286-317) and was forwarded to the Delegate on 5 April 2017: CB 285, no mention is made of either the process by which the Applicants left Sri Lanka via Colombo Airport, or, relevantly, any assistance from any person to either of the Applicants to facilitate their passage through any procedures at the Colombo Airport.

  14. At the Delegate’s Interview EDL18 gave evidence and was asked by the Delegate about the circumstances in which he came to leave Sri Lanka legally, and the Delegate reached conclusions with respect thereto, as follows: CB 338:

    At the PV interview I asked the applicant as a person who claims to have been of interest to the Sri Lankan authorities at the time of his departure how was he permitted to depart Sri Lanka legally by air. He responded that his agent had paid people at the airport who allowed him to exit.

    The fact that Applicant 2 [EDL18] was allowed to depart indicates that the authorities did not consider him of any adverse interest.

    I find Applicant 2 travelled on a valid travel document and that he was not of adverse interest to either the STF, CID, Karuna Group or anyone else in Sri Lanka at the time of his departure. While he claims to have used an agent and bribery to navigate through the airport, I have found that Applicant 2 was not assisted or enabled to avoid security checks. It follows that I am satisfied Applicant 2 was not a person of interest to the authorities when he departed Sri Lanka. Therefore, I am satisfied that Applicant 2 was not at the time of his departure from Sri Lanka, a person of interest to the authorities as a result of his family’s links to LTTE or Karuna Group related incidents.

    I am satisfied that Applicant 2 departed Sri Lanka legally but no longer holds a valid Sri Lankan passport. I accept that should he be returned to Sri Lanka, he may come to the attention of the authorities as a returned asylum seeker.

  15. In relation to EDN18 the Delegate found, based on the SHE Visa Application, that EDN18 left Sri Lanka legally by air from Colombo Airport: CB 331. The Delegate noted EDN18’s claim that she did so with the assistance of a person who “did everything” for her at Colombo Airport. Based on country information, specifically a 2009 British Home Office report, the Delegate found that “[t]he fact that … [EDN18] was allowed to depart indicates that the authorities did not consider her of any adverse interest”, and that whilst EDN18 used a person to assist her she “was not assisted or enabled to avoid security checks” by that person: CB 332. The Delegate was further satisfied that EDN18 “was not at the time of her departure from Sri Lanka, a person of interest to the authorities as a result of her arrest in 2008”: CB 332.

  16. Significantly, and unlike EDL18:  see [21] above (third paragraph of the quote), there does not appear to have been a claim made to the Delegate by EDN18 that the person who assisted her at Colombo Airport actually paid any money to any official at the airport, or otherwise, as a bribe to facilitate EDN18’s passage through any procedures at the Colombo Airport.

  17. On 22 November 2017 a migration agent forwarded to the Authority a detailed submission on behalf of EDL18 (“EDL18’s Authority Submission”): CB 434-437, and submitted that the Delegate’s Decision failed to meet the requirements of s 54 of the Migration Act by failing to have regard to all of the information in the SHE Visa application, and relevantly, at CB 434 that:

    We submit that the delegate has failed to:

    - Understand the departure arrangements at the airport , corruption amongst officials and that only people on a stop list or with a warrant for arrest, or a court order to impound their passport, are stopped at the airport on departure

    - The fact the applicant departed Sri Lanka through the airport using a Sri Lankan passport, does NOT mean he is not of interest to the CID or Sri Lankan authorities

  18. EDL18’s Authority Submission further submitted that (footnotes omitted, but otherwise transcribed without amendment):

    1.1 CORRUPTION IN SRI LANKA AND AIRPORT DEPARTURES

    1.1.1 The delegate concluded that because the applicant left the country legally he was of no interest to the Authorities and will not suffer persecution on return.
    1.1.2 The applicant’s passport and travel was arranged for him and the agent paid bribes at the airport
    and accompanied the applicant to Malaysia where he took the applicant’s money and passport.
    Whilst he may have left the country “legally” in that he held a passport in his name, the delegate
    has failed to acknowledge the power of bribes in countries like Sri Lanka that could enable a
    “person of interest” to depart the country and also the fact that people are only prevented from
    leaving if there is an arrest warrant or a court order to impound the passport.
    1.1.3 Independent country information confirms that corruption is rife in Sri Lanka. In 2009, Sri Lanka was ranked by Transparency International to be the 97th most corrupt country of 180; and in
    2016, Sri Lanka ranked 95 of 176 countries in the corruption perception index.
    1.1.4 The delegate herself quoted from the UK Home office report 2009 stating that Immigration
    officers were only notified of bail or reporting conditions a passenger might face if a court had
    decided to impound their passport, or if an arrest warrant was issued. In rare cases, the State
    Intelligence Service might inform immigration of individuals on a wanted list, or suspected of
    terrorist activity. Furthermore, immigration officers did not have the legal authority to prevent
    passengers from embarking on a flight, unless a court sanction was in place” and then concludes
    that the fact the applicant was allowed to depart indicates he was not a person of adverse
    interest. However the UK report quoted does not mention anything about Immigration officers
    being advised of “persons of interest” and the applicant has never claimed that there was an
    arrest warrant issued for him or that a court had impounded his passport.
    1.1.5 UK TRIBUNAL DECISION - GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (we acknowledge this decision was not known to the applicant or the migration
    agent at the time of lodging the SHEV visa)
    Pg 146 para 28. It is possible to leave the country using bribery with the help of an agent. The
    security officers and immigration officers at the international airport are no exception to the widespread bribery and corruption in Sri Lanka. It is always possible for a person to use influence or bribery to get through the airport without being detained as an LTTE suspect.

  19. On 22 November 2017 the same migration agent used by EDL18 forwarded to the Authority a detailed submission on behalf of EDN18 (“EDN18’s Authority Submission”): CB 439-443, and submitted that the Delegate’s Decision failed to meet the requirements of s 54 of the Migration Act by failing to have regard to all of the information in the SHE Visa application, and relevantly, at CB 439 that:

    We submit that the delegate has failed to:

    - Consider in full the power and effect of bribes in Sri Lanka to any officials and even with security officials at the airport

  20. EDN18’s Authority Submission further submitted that (footnotes omitted, but otherwise transcribed without amendment):

    1.1 BRIBES IN SRI LANKA
    1.1.1 The delegate concluded that because the applicant left the country legally she was of no
    interest to the Authorities and will not suffer persecution on return.

    1.1.2 A person unknown to the applicant arranged her passport and she was person accompanied through the airport checks by a man who kept her passport and did all the talking (in Sinhalese) at each check point and then travelled on the same plane to Malaysia. Whilst she may have left the country “legally” in that she held a passport in her name, the delegate has failed to acknowledge the power of bribes in countries like Sri Lanka that could enable a “person of interest” to depart the country.

    and then repeats 1.1.3 to 1.1.5 of EDL18’s Authority Submission as set out at [25] above.

  21. In the Authority Decision the Authority:

    (a)at CB 454 at [14] set out what it said was EDL18’s claim that:

    He obtained a passport in his name and left Sri Lanka for Malaysia in November 2006 from Colombo airport using that passport. He paid an agent to make the arrangements for his trip to Malaysia and to ensure his safety when travelling through the airport and gave the agent money to give to people at the airport to let him through.

    (b)at CB 456-457 at [21] set out what it said was EDN18’s claim that:

    After her arrest L paid an agent to get her a passport and make arrangements for her to
    leave Sri Lanka. After L was kidnapped the agent contacted her mother who continued the
    arrangements for the applicant’s passport and departure. Her family gave her the passport
    form to fill in and sign. At the beginning of 2009 they told her the passport was ready. She was worried about how she would get out to the airport. Her family told her it was all organised and someone would assist her to depart. When the time came to leave her uncle V collected her and an agent also joined them. The day of her departure was the first time she had been to the airport. The agent who spoke Sinhala arranged everything, held her passport and she stood with him at the counter but didn’t say anything. The agent travelled with her to Malaysia but they sat separately. After they cleared the airport in Malaysia he gave her back her passport and took her to the place where she lived in Malaysia.

    (c)in considering issues associated with EDL18’s credibility at CB 459 at [28] observed that:

    I also do not consider it credible that the Sri Lankan authorities, including the KG [Karuna Group], or other unidentified persons would turn up from time to time for a period of up to ten years or so after he left Sri Lanka to simply ask after his whereabouts, particularly as he left Sri Lanka under his own name and using his own passport.

    (d)in relation to the Applicants risk of harm on return to Sri Lanka consequent upon their possibly being considered by the Sri Lankan authorities to be failed returning asylum seekers:

    (i)found that the Applicants having departed Sri Lanka legally by air from Colombo Airport, were not at risk of prosecution under the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I and E Act”): CB 468 at [59]; and

    (ii)at CB 468-469 at [62] made observations and a finding as follows:

    I accept that some asylum seekers with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. However, as discussed above, on my findings, the authorities including the KG have shown no interest in Applicant 1 since shortly after his departure from Sri Lanka in November 2006 and have shown no interest in Applicant 2 since shortly after her departure from Sri Lanka in March 2009, more than 11 years and nine years, respectively, have passed since Applicant 1 and Applicant 2 left Sri Lanka, and there has been a change of government and conditions in Sri Lanka in that time. I am satisfied that the Applicants’ profiles are such that they will not be of interest to the Sri Lankan authorities if returned to Sri Lanka.

    (e)in its complementary protection assessment at CB 470 at [71] found that (footnote omitted):

    have found that there is not a real chance of harm to the Applicants, now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinions, as Tamils from the east and north, if he asks for the return of the land in Applicant 1’s case, because of their relationship to each other, and/or as returned Tamil failed asylum seekers, or a combination of these. As ‘real chance’ and ‘real risk’ involve the same standard, it follows that l am also satisfied that there is no real risk of significant harm if they are returned to Sri Lanka.

  1. In oral submissions on behalf of the Minister it was submitted that the fact that the Applicants left Sri Lanka legally via Colombo Airport was not a reason for the rejection of the Applicants’ claims: Transcript, p 8. The Minister’s submission is not entirely factually accurate. As set out at [28] above the Authority:

    (a)in relation to EDL18, set out the claim of bribery (made before the Delegate and also in EDL18’s Authority Submission) said to enable legal passage through Colombo Airport;

    (b)set out the arrangements claimed by EDN18 to have enabled legal passage through Colombo Airport, but not including the claim concerning the “power of bribes” made in EDN18’s Authority Submission, but which the Court notes was not a claim made by EDN18 when the matter was before the Delegate;

    (c)made an adverse credibility finding concerning EDL18 having regard to, amongst many other things, the fact of his having left Sri Lanka legally, and which led to the rejection of at least one of EDL18’s claims;

    (d)concluded the Applicants were not at risk of prosecution under the I and E Act given that they had left Sri Lanka legally; and

    (e)was satisfied, having regard to the matters set out at [28(d)(ii) and (e)] above, that the Applicants were not at risk of the relevant types of harm if returned to Sri Lanka.

  2. The Authority was satisfied, having regard to the matters set out at [28(d)(ii) and (e)] above, that the Applicants were not at risk of the relevant types of harm if returned to Sri Lanka. That finding renders the bribery claims of EDL18 and EDN18 redundant because the bribery claims are subsumed by findings of greater generality: WAEE at [47] per French CJ, Sackville and Hely JJ; WZAWB v Minister for Immigration [2016] FCCA 1345; (2016) 309 FLR 398 at 126 per Judge Lucev, namely that the Applicants will not, by reason of the lapse of time since their respective departures from Sri Lanka in 2006 (EDL18) and 2009 (EDN18) and a change in government and conditions in Sri Lanka, face any relevant type of harm for the purposes the relevant provisions of the Migration Act if they return to Sri Lanka. The Authority must be considered to have made a general finding which encompasses specific consideration of the Applicants’ safety and welfare upon return to Sri Lanka.

  3. In relation to EDL18’s credibility the issue concerning the means of EDL18’s departure from Sri Lanka was but one of very many issues which contributed to the Authority finding that EDL18 had embellished and exaggerated parts of his evidence in order to boost his protection claims: CB 458-459 at [27]-[29]. As such it cannot realistically be said to be a matter about which, even if there was some kind of an error (and none is obvious to the Court), that there is a possibility that such an error would have made any material difference to the Authority’s adverse credibility findings concerning EDL19, and hence no material difference to the ultimate outcome: LPDT at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ .

  4. In the above circumstances the Authority Decision is not affected by jurisdictional error by reason of any matter relating to the legality of, or other circumstances surrounding, the Applicants departure from Sri Lanka via Colombo Airport.

    CID searching for the Applicants

  5. The Applicants asserted that the Sri Lankan CID have been looking for them in Sri Lanka, but said that they were unable to get any documentary or video evidence to show that that had happened: Transcript, pp 3 and 5.

  6. This assertion reveals no jurisdictional error in the Authority Decision: it is no more than a statement or admission by the Applicants that they are unable to prove this aspect of their claims. Further it is apparent that the Authority dealt with the claims that the Sri Lankan authorities, including the CID, were searching for the Applicants for years after the Applicants left Sri Lanka, and:

    (a)found that EDL18’s claims in this regard were not credible: CB 459 at [28] (which is set out at [28(c)] above);

    (b)found that EDN18’s claims that the Sri Lankan authorities made over 40 visits to her family over eight years after EDN18 left Sri Lanka, only to be repeatedly told that the family “didn’t know her whereabouts”, were not credible: CB 460-461 at [33];

    (c)rejected EDN18’s claims that the Sri Lankan authorities were making “ongoing enquiries” about her: CB 461 at [34]; and

    (d)found that the Applicants were not of any adverse interest to the Sri Lankan authorities, and that no further enquiries about their whereabouts had been made by Sri Lankan authorities since their departures from Sri Lanka in November 2006 (EDL18) and March 2009 (EDN18) respectively: CB 467 at [55] and 468-469 at [62].

  7. In the above circumstances the Authority Decision is not affected by jurisdictional error by reason of any matter relating to the allegations that the CID have been looking for the Applicants, particularly since their respective departures from Sri Lanka.

    2017 DFAT Report

  8. The Applicants referred to the 2017 DFAT Report (which is not in evidence before the Court) at 1.3.14 indicating that there was “no problem” in Sri Lanka, and said that:

    (a)the Refugee Council of Australia “says that there is problems” in Sri Lanka;

    (b)France had accepted the Applicants as refugees, but when they were in Malaysia the Malaysian Government did not permit them to leave, or facilitate their leaving, Malaysia; and

    (c)the UNHCR had recognised the Applicants as refugees: Transcript, p 4.

  9. In relation to whether the Applicants had a well-founded fear of persecution and in relation to its complementary protection assessment the Authority had regard to a wide range of country information, including the following:

    (a)2016 and 2017 United States Department of State Reports on Human Rights Practices in Sri Lanka: CB 462 at fn 11, 463 at fnn 13, 14, 16 and 17; 465 at fn 33;

    (b)2012 and 2017 United Kingdom Home Office Reports on the treatment of returnees, Tamil separatism and the treatment of Tamils with perceived associations with the LTTE: CB 463 at fnn 12, 18 and 19, 465 at fnn 31 and 33, 468 at fn 38, 469 at fn 40;

    (c)the 2017 DFAT Report: CB 463 at fnn 20 and 21, 464 at fnn 22-26, 465 at fnn 28, 30, 32 and 33, 466 at fn 34, 468 at fnn 35-37, 469 at fnn 39 and 41;

    (d)the 2012 UNHCR Eligibility Guidelines CB 465 at fnn 27 and 29;

    (e)a 2016 United Nations Special Rapporteur report on Sri Lanka: CB 465 at fn 32;

    (f)various press reports and reports from non-government organisations: CB 468-469 at fn 38; and

    (g)a 2013 Immigration and Refugee Board of Canada report on the treatment of Tamil returnees to Sri Lanka: CB 468-469 at fn 38.

  10. Generally, the choice of country information and the factual findings arising from country information, where the country information is relatively recent and the factual findings are open on the available material, are matters solely for the Authority as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ; WZATU v Minister for Immigration [2016] FCCA 2247; (2016) 314 FLR 416 at [47] per Judge Lucev, or as the Federal Court recently observed in BUY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1511 at [26] and [30] per Raper J:

    The preference of country was within the fact finding function of the Tribunal and accordingly the choice of country information was for the Tribunal and disagreement with the same does not give rise to any irrationality or legal unreasonableness.

    The primary judge was correct to identify that “it was a matter for the Tribunal as to what country information it accepted” (at J[24]): The Tribunal’s choice of, and preference for, certain country information was a matter for it and was within its fact- finding function: NAHIv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].

  11. In reaching its conclusions concerning the Applicants’ refugee and complementary protections claims the Authority did not, as is seemingly alleged in the Applicants’ oral submissions, only have regard to country information from DFAT, and specifically here, the 2017 DFAT Report.

  12. First, at CB 467 at [53] the Authority said that in “[h]aving regard to the information before it” it did “not consider the Applicants … face[d] a real chance of harm now or in the reasonably foreseeable future, for a number of reasons”. The country information before the Authority and to which it had referred at 462-466 at [39]-[51] included the country information referred to at [37(a)-(e)] above, save for the 2012 United Kingdom Home Office Report. Further, the Authority considered that the 2017 DFAT Report, the 2017 United Kingdom Home Office Report and the 2017 United States Department of State Report “are all broadly consistent with each other and much of the other country information”: CB 466 at [51].

  13. Second, when giving detailed reasons for the conclusion concerning whether the Applicants would face a real chance of harm in the reasonably foreseeable future the Authority:

    (a)noted that “a number of the reports [being those set out at [37(a)-(e)] above note that “residence in a former LTTE controlled area or being Tamil does not give rise to a need for protection”: CB 467 at [54]; and

    (b)in concluding that the position of Tamils in Sri Lanka had “improved markedly” in recent times, cited the 2017 United Kingdom Home Office Report observation that “a person’s past LTTE … involvement no longer generally gives rise to a need for protection”: CB 467 at [54].

  14. Third, in relation to the position of asylum seekers returning to Sri Lanka, the Authority:

    (a)referred to the 2017 DFAT Report, but also had regard to its earlier findings and in relation thereto referred to the “country information” generally in refusing to accept that the Applicants would face a real chance of harm on return to Sri Lanka: CB 468 at [62]-[63]; and

    (b)had regard to both the 2017 DFAT Report and the 2017 United Kingdom Home Office Report in considering whether the Applicants might face a real chance of persecution in the near or reasonably foreseeable future: CB 469 at [64]-[65].

  15. At CB 470 at [71] the Authority had regard to its earlier findings (and hence the country information considered and relied upon in relation thereto) in concluding that the Applicants faced “no real risk of significant harm” if returned to Sri Lanka.

  16. In reaching its conclusions concerning the Applicants’ refugee and complementary protections claims the Authority had regard to relatively recent, reputable and reliable – mainly governmental - sources of country information on Sri Lanka. In the circumstances the choice of country information was a matter for the Authority and was within its fact-finding function: NAHI at [11] per Gray, Tamberlin and Lander JJ; BUY17 at [26] and [30] per Raper J.

  17. In relation to the assertion raised by the Applicants at [36(a)] above concerning the views of the Refugee Council of Australia, the Court observes that there is no evidence that any opinion held, or report issued, by the Refugee Council of Australia was in the referred material from the Secretary or was cited to the Delegate or the Authority.

  18. The Authority does not make a jurisdictional error by not having regard to information that was not put before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [55] and [68] per Black CJ, French and Selway JJ. To put it a little differently, the Authority’s function was to respond to the case that the Applicants advanced: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [78] per Kirby J; SGBB vMinister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J. Apart from the oral assertion in the Applicants’ submissions concerning the views of the Refugee Council of Australia no other information was put before the Court at hearing concerning any Refugee Council of Australia opinions or reports. But, in any event, it does not matter as, for the reasons set out above: see [38]-[44] above, the choice of, and preference for, certain country information was a matter for the Authority.

  19. In the SHE Visa application both EDL18 and EDN18 say that they:

    (a)made an application to the French Embassy in Malaysia for “[r]efugee resettlement” but that the “French embassy said they needed UNHCR approval. UNHCR did not give approval”: CB 104 at Q 71; CB 130 at Q 71; and

    (b)have never been refused a visa to a country other than Australia: CB 104 at Q 72; CB 130 at Q 72.

  20. The Delegate found:

    (a)at CB 339 in relation to EDL18 that:

    (i)he claimed:

    …  to have applied for a visa to migrate to France as a refugee at the French Embassy in Kuala Lumpur, Malaysia and that his application was refused because the UNHCR did not give approval. At PV interview I questioned Applicant 2 further about this application, he claims he attended an interview and that his refugee visa application was refused because he did not have UNHCR approval. He does not know why his application was not endorsed by the UNHCR and in 2011 or 2012 his refugee application was refused by the French authorities.

    (ii)that although there was evidence that EDL18 had been recognised as a refugee by the UNHCR in Malaysia, there was no evidence that EDL18’s claims for refugee status had been “fully assessed and refused” by France;

    (b)in relation to EDN18 that:

    (i)she had been advised by the French Embassy in Malysia that she could not apply directly to migrate to France as a refugee but had to do so through the UNHCR: CB 332; and

    (ii)that although there was evidence that EDN18 had been recognised as a refugee by the UNHCR in Malaysia, there was no evidence that EDN18’s claims for refugee status had been “fully assessed and refused” by France: CB 333.

  21. In EDL18’s Authority Submission EDL18 at CB 436 EDL18 claimed that:

    The applicant and his wife are both mandated refugees under the UNHCR. They applied for resettlement in France but finalisation of this application depended on the UNHCR supporting their resettlement in France. The process with resettlement of refugees under the Subclass 200 program is similar and reliant on the UNHCR referral. The applicant denies that he stated that their application to France was refused. France advised the couple that they need a referral from the UNHCR but the couple stated they were having many problems in Malaysia and the UNHCR process took a long time so they left Malaysia and did not wait for a decision from France. The fact is that the applicant was a UNHCR mandated refugee and they both held valid refugee cards when they left Malaysia.

  22. In EDN18’s Authority Submission EDN18 repeated (with the change of “his wife” to “her husband” in the first sentence) the first three sentences of the claim in EDL18’s Authority Submission set out in the preceding paragraph.

  23. The Authority Decision makes no reference to the Applicants’ applications for refugee resettlement in France.

  24. There is therefore no evidence that the assertion now made before this Court that France accepted the Applicants as refugees is correct.

  25. For the purposes of the Authority Decision nothing turned on the question of whether the Applicants had made applications for refugee resettlement in France and whether they had been accepted, rejected, or as seems most likely, they were simply not processed in Malaysia by the UNHCR because:

    (a)there was in fact no claim made by the Applicants which turned upon whether the Applicants had made applications for refugee resettlement in France; and

    (b)the refugee or resettlement status allegedly afforded the Applicants by a foreign country is neither determinative nor a mandatory relevant consideration in the Authority’s review of the Applicants’ refugee and complementary protection claims: Migration Act, ss 5H, 5J, 36(2)(a) and (aa) and 65.

  26. In relation to the Applicants’ assertion that they had been recognised as refugees by UNHCR the Authority accepted that that they had been so recognised in November 2008 (EDL18) and December 2009 (EDN18) respectively, but went on to observe at CB 468 at [56] that:

    While I accept that they were recognised as refugees by the UNHCR, it is now nine or ten years since that recognition and there have been substantial and significant changes in that time in Sri Lanka for Tamils as discussed above.

  27. As with a determination by a foreign country, the 2008 and 2009 refugee determinations by the UNHCR are neither determinative nor a mandatory relevant consideration in the Authority’s review of the Applicants’ refugee and complementary protection claims. Further, the Authority’s rationale for distinguishing the grant of refugee status to the Applicants by reason of the passage of a significant passage of time and substantial and significant changes in Sri Lanka during that passage of time was not unreasonable: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181, nor was that rationale not open to the Authority on the evidence before it, for the reasons that it gave, because no other rational or logical decision-maker could not have drawn the same conclusions: 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.

  28. In the above circumstances the Authority Decision is not affected by jurisdictional error by reason of any matter relating to its consideration of the 2017 DFAT Report, its treatment of country information generally, or any non-Australian refugee determinations in relation to the Applicants.

    Children

  29. The Applicants said that they had two children, one of whom was at school: Transcript, p 4. There is no information concerning the children in the CB, and no information concerning the children has been submitted to the Court in relation to the Judicial Review Application. In any event, as the Court explained to the Applicants at the final hearing: Transcript, pp 4-5, merely having children who were born in, or who are living in, Australia is not, without more, a basis for finding jurisdictional error in the Authority Decision. In that respect there is nothing more in this case and the fact of the Applicants having two Australian born children does not establish jurisdictional error in the Authority Decision.

    The arrest of EDN18 and the kidnapping of her uncle

  30. The Applicants submitted that:

    (a)when EDN18 was arrested in Sri Lanka she was given a “little slip of paper” and they requested that the Court verify that document with the Sri Lankan Government to establish “whether it’s true or whether it’s a false document”; and

    (b)EDN18’s uncle “gave money” to get EDN18 out of jail and that within a month of EDN18 leaving Sri Lanka her uncle was kidnapped: Transcript, p 5.

  31. The Delegate noted that EDN18 had provided an “uncertified copy of a document purported to be a Receipt of Arrest” of EDN 18 on 11 January 2008 “regarding Terrorist Activity” and “issued by the Ministry of Defence, Public Security, Law and Order”: CB 330. The Delegate noted the ready availability of forged documents in Sri Lanka and said it was “unable to verify the Authenticity” of the Receipt of Arrest: CB 334, but ultimately accepted that EDN18 had been “arrested, interrogated and after one week was released” in January 2008: CB 335. The Delegate found that if EDN18 had been suspected of involvement in bombings in October and November 2007, or was of interest to the Sri Lanka authorities, she would have been stopped when departing from Colombo Airport in March 2009: CB 335-336.

  1. In dealing with the circumstances surrounding EDN18’s arrest the Authority noted EDN18’s provision of the Receipt of Arrest: CB 457 at [24], but went on to accept EDN18’s claims to have been arrested: CB 459 at [30], 460-461 at [32]-[33] and 461 at [34]. Given, amongst other things, EDN18’s release without detention order or charge, the Authority did not, however, accept that:

    (a)the Sri Lankan authorities had a high level of interest in EDN18 after her release following her arrest and one week detention: CB 460 at [32]; or

    (b)having regard to her personal circumstances and the country information, that EDN18 had a profile which gave rise to any relevant risk of harm: CB 467 at [53] and [55] and CB 469 at [63] and [67].

  2. The Applicants’ request that the Court verify a document with the Sri Lankan Government misconceives the role of the Court on the Judicial Review Application. The Court’s role is neither investigatory nor inquisitorial, and it does not rehear the merits of the case that was before the Authority, as to do so would result in the Court undertaking impermissible merits review, contrary to long-standing principle in determining judicial review applications: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, it is evident that the Authority considered all the claims made to it, and had regard to all the information put before it, including, relevantly in relation to the arrest, the Receipt of Arrest which appears to be the only document provided to EDN18 at the time of her arrest, and the only document relied upon by EDN18 before the Delegate in relation to the circumstances of the arrest. Notably, it also does not appear that EDN18 sought to put any new documentary information concerning the circumstances of her arrest before the Authority, the only new information being country information: CB 450 at [5]-[7].

  3. In the above circumstances the Authority Decision is not affected by jurisdictional error by reason of any matter relating to its consideration of documents concerning EDN18’s arrest, and the Applicants submissions at hearing before this Court in that regard constitute no more than a request for impermissible merits review.

  4. In relation to the Applicants’ submissions concerning one of EDN18’s uncles bribing officials to obtain her release from arrest and the subsequent abduction of that uncle, those submissions do not allege any jurisdictional error in the Authority Decision and are otherwise simply a request for the Court to undertake impermissible merits review:  Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. No issue arises in relation to the uncle bribing officials as the Authority appears to have accepted that the uncle did so to obtain EDN18’s release after her arrest: CB 460 at [32]. Furthermore, the Court notes that the Authority considered EDN18’s claims concerning her uncle’s abduction and concluded that there was “nothing in the material to support … [EDN18’s] assertion that he was abducted for helping her”: CB 459-460 at [31] and 461 at [34]. In these circumstances the Authority Decision is not affected by jurisdictional error by reason of any matter relating to EDN18’s uncles bribing officials to obtain her release from arrest and the subsequent abduction of that uncle.

    Sexual assault or harassment of EDN18

  5. The Applicants said that EDN18 did not tell the Delegate everything in relation to her sexual harassment when she was in custody following her arrest, but she was now prepared to tell the Court what had happened to her: Transcript, pp 6-7, but further said that “there we have said that … she was sexually harassed. We told, but we didn’t have evidence to it”: Transcript p 7.

  6. The Applicants were represented by migration agents before both the Delegate and the Authority: CB 117, 143, 285 and 375-379.

  7. It does not appear that EDN18 made any claim to the Delegate that she was sexually harassed or sexually assaulted whilst under arrest and in detention for one week.

  8. EDN18’s claims prior to the Delegate’s Interview rise no higher than that recorded in the Delegate’s Decision at CB 328:

    She was held at the police station for one week. She was made to remove her clothes so her body could be examined. They found dark patches of skin near her joints which showed that she had trained with the LTTE.

  9. EDN18 made further claims at the Delegate’s Interview, as noted by the Delegate at CB 329-330. None of the further claims included a claim that EDN18 had been sexually harassed or sexually assaulted whilst under arrest and in detention for one week. In the Delegate’s Interview the Delegate Decision notes that EDN18 “claims to have been held at the … [name deleted] Police Station, Colombo for one week and while in custody was beaten and tortured”: CB 333.

  10. The Delegate “accept[ed] the applicant was arrested in January 2008, resulting in severe questioning and mistreatment”: CB 334, and for the purpose of assessing EDN18’s claims accepted that she “was detained and questioned in January 2008 in relation to a bombing in 2007 … [and] was released after one week”: CB 334.

  11. When the matter was referred to the Authority the EDN18’s Authority Submissions (prepared by the Applicants’ migration agent) submitted that the Delegate failed to “[f]ully investigate the distress of the applicant when she was speaking about the torture she faced in prison”: CB 439. In this regard the following submissions were made at CB 441 (footnote omitted, but otherwise transcribed without amendment):

    1.3      APPLICANT’S CLAIMS OF TORTURE

    1.3.1The delegate noted the applicants claims of being “held at the Dehiwala Police Station, Colombo for one week and while in custody was beaten and tortured.”

    1.3.2The delegate noted that country information supported aspects of the applicant’s claims and that she had also produced numerous documents as evidence of her arrest and released.

    1.3.3The delegate acknowledged “the applicant’s consistency and the emotion with which she recalled her arrest” and accepted she had been severely questioned and mistreated.

    1.3.4The delegate failed to explore these claims any further despite quoting country information that people face a real risk of ill-treatment or harm whilst in prison.

    1.3.5The applicant has advised me that she is receiving counselling from STTARS but has only slowly being divulging more intimate things that happened to her as it makes her to upset. She states often there have been male interpreters and she cannot divulge such matters with them and also she has not been ready to divulge the more intimate matters

    1.3.6We submit that it can be assumed that as the applicant claimed she was stripped naked and “tortured” that she also suffered rape even though she has not put that claim verbally.

    1.3.7    US State Government report (March 2017) on Sri Lanka states:

    There were credible reports that police and military forces abducted, tortured, and sexually abused citizens. The Prevention of Terrorism Act (PTA) allows courts to admit as evidence any statements made by the accused at any time, and provides no exception for confessions extracted by torture….

    They (ed.- the UN special rapporteur) stated that police investigators used torture and ill treatment routinely.

    1.3.8We submit at the very least the applicant’s claims should be considered against the Complimentary protection guidelines.

  12. The Applicants also submitted that EDN18 “was interrogated repeatedly, strip searched, beaten and tortured” during her one week in detention: CB 441 (at 1.4.1).

  13. In the Authority Decision the Authority dealt with this issue as follows at CB 461-462 at [35] (footnote deleted):

    In Applicant 2’s representative’s submissions to the IAA, it was submitted that it could be assumed that as Applicant 2 was stripped naked and tortured that she also suffered rape even though she has not put that claim verbally. The submissions also refer to her receiving counselling, that there were often male interpreters and that she cannot divulge such matters with them, and also that she has not been ready to divulge the intimate matters. I accept that there are reports of sexual abuse by the authorities of those who have been detained and interrogated in Sri Lanka. Understandably, victims of such abuse may be reluctant to divulge such incidents, particularly before members of the opposite sex. I note that when Applicant 2 was discussing her protection claims at the SHEV interview the delegate, interpreter and her agent were also female. Although I accept, as she claimed, that Applicant 2 was, unfortunately, stripped naked and tortured during her arrest and detention in January 2008, in the absence of any verbal claim by Applicant 2, I am not prepared to make the assumption requested.

  14. The Court notes that in EDN18’s Authority Submission:

    (a)no submission is made that the matters set out at [70] above constitute new information; and

    (b)no request is made for EDN18 to be interviewed by the Authority.

  15. It is not necessary in this case to deal with the difficult question of the line between a submission per se and new information in what are said to be submissions as it might arise in relation to EDN18’s “submission” that it can be assumed she was sexually assaulted whilst under arrest (as to that question see Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR at [34]- [35] per Flick, Griffiths and Perry JJ; AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1283 at [58] per Perry J). That is for two reasons. First, the submission was not put as a fact and therefore as something which might be capable of constituting “new information” for the purposes of s 473DC(1) of the Migration Act,  but rather as something which might be assumed. Second, and importantly (and this applies as well to the prospect of the Authority interviewing EDN18), it would not have been material (in the sense referred to in LPDT as set out at [8] above) in circumstances where the Authority found, notwithstanding that EDN18 had been “stripped naked and tortured”, that she was not, at the time she left Sri Lanka, of any adverse interest to the Sri Lankan authorities and there was no risk of any relevant harm in the event of her return to Sri Lanka, the basis for so finding including her release without charge or detention order after her arrest and relevant country information. Thus, even if EDN18 had been sexually assaulted as alleged in EDN18’s Authority Submission, there was a discrete factual basis for the Authority Decision to affirm the Delegate’s Decision not to grant the Applicants the SHE Visa.

  16. In the circumstances the Authority Decision is not affected by jurisdictional error by reason of any matter relating to the alleged sexual assault or harassment of EDN18.

    Jurisdictional error otherwise

  17. The Court is cognisant that the Applicants were self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.

    CONCLUSION AND ORDERS

  18. The Court has concluded that the Applicants have failed to establish jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

  19. The Court will hear the parties as to costs.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       25 October 2024

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