Eet17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 180
•29 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EET17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 180
File number: SYG 2911 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 29 February 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether Authority made a finding that was illogical or irrational – whether Authority asked itself the wrong question – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 476, 477 Cases cited: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
AWG18 v Minister for Home Affairs [2020] FCA 744
CDW18 v Minister for Home Affairs [2019] FCA 270
EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 29 January 2024 Place: Perth Counsel for the Applicant: Mr A Silva (direct brief) Counsel for the First Respondent: Mr M Gao Second Respondent: Submitting appearance, save as to costs. Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 2911 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EET17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
29 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 25 August 2017. The applicant seeks judicial review of the Authority decision by application made under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on a single ground of application which impugns a finding made by the Authority to the effect that it was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm from some members or former members of the Tamil Makkal Viduthalai Pulikal (TMVP), who he claimed would target him for extortion and harm. The applicant pleads that the Authority decision is affected by jurisdictional error on the basis that:
(a)the impugned finding was not open to the Authority, or was unreasonable; and
(b)the Authority asked itself the wrong question or considered the wrong issue.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. I therefore dismiss the judicial review application.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in April 2013 and is an unauthorised maritime arrival.
The applicant applied for a protection visa on 25 July 2016. In a statement provided with his application, the applicant claimed to fear harm from the TMVP based upon past incidents of the TMVP targeting the applicant and his wife.
The applicant attended an interview with an officer of the Minister’s Department on 15 December 2016 to discuss his claims for protection (protection visa interview).
A delegate of the Minister refused to grant the applicant a protection visa on 19 January 2017. The matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
The Authority affirmed the delegate’s decision not to grant the applicant a protection visa on 25 August 2017.
SUMMARY OF AUTHORITY DECISION
It is unnecessary to summarise the whole of the Authority decision. Rather, given the applicant’s ground of application focuses on the Authority’s findings in relation to the applicant’s claims involving the TMVP, this summary also focuses on the Authority’s findings in relation to those claims.
The Authority was satisfied that the applicant’s claims were mostly credible. The Authority accepted that in 2008, while the applicant was working overseas, his wife received a letter from the TMVP ordering her to attend their office, where the TMVP demanded she pay them a sum of money because they knew that the applicant was working overseas and the couple were perceived to be wealthy. The Authority accepted that the applicant’s wife negotiated to pay a lower amount and paid this by pawning her jewellery.
The Authority also accepted that in January 2013, when the applicant returned to Sri Lanka for a holiday, two men claiming to be from the TMVP came to his house and questioned him about his time spent overseas and his future plans. The Authority accepted that three days after this incident, the men returned with two more men and demanded the applicant pay them. The Authority accepted that these men pushed the applicant to the ground and broke his leg with a wooden rod, which left the applicant hospitalised for several days. The Authority accepted that when the police questioned the applicant about his injuries at the hospital, the applicant told the police he had fallen over.
The Authority accepted that the TMVP subsequently approached the applicant about whether he had told the police anything about the January 2013 incident. The Authority also accepted that the same two TMVP members came to the applicant’s house in April 2013 and threatened him with a gun, which led to the applicant’s departure from Sri Lanka.
The Authority was prepared to accept the TMVP may have monitored the applicant’s wife’s movements in the immediate period following the applicant’s departure, but did not accept the applicant’s claim, raised only in an arrival interview conducted several months after his arrival in Australia, that his wife had to live in three different houses, and that on one occasion the TMVP questioned his wife about his whereabouts and pushed her over. The Authority found that the TMVP had not approached the applicant’s wife since the applicant departed for Australia some four years prior to its decision.
The Authority referred to country information that was before the delegate which indicated that the TMVP was no longer operating as government-sponsored paramilitary and had joined the mainstream political process in Sri Lanka. The Authority was not satisfied that the TMVP was still operating as a paramilitary or that any former members of the TMVP had an interest in targeting the applicant, or his family, on account of his perceived wealth, or his refusal to pay them in 2013.
The Authority was not satisfied that the TMVP, or any other group, had an interest in targeting the applicant for extortion and found that the applicant did not face a real chance of serious harm or a real risk of significant harm if returned to Sri Lanka.
JUDICIAL REVIEW APPLICATION
The applicant filed his judicial review application on 20 September 2017, meaning that his application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
An amended application was filed on 18 December 2023, raising the following ground:
(1)(a)The Authority committed jurisdictional error in that it was not open, or it was unreasonable, for the Authority not to be satisfied that there is a reasonable possibility some members or former members of Tamil Makkal Viduthalai Pulikal group (TMVP) have an interest in targeting the applicant for extortion and harm, or targeting the applicant for his refusal to pay them extortion money in 2013 by further extortion and harm.
Particulars
(i)In essence, the Authority found at CB474[31] and at CB473[25] that it was not satisfied that TMVP or its former members have an interest in targeting the applicant, should he return to Sri Lanka.
(ii)The Authority made its decision on 25 September 2017, and therefore the Authority is presumed to have based its decision on its understanding of the country situation around that date.
(iii)At CB471[17] the Authority accepted that in August 2008 the TMVP tried to extort Rs. 400,000 from the applicant’s wife who eventually paid Rs. 100,000 to the TMVP.
(iv)At [18] the Authority accepted that in January 2013 the TMVP tried to extort the applicant of Rs. 400,000, broke his leg with a wooden rod and he was hospitalised.
(v)At [29] the Authority accepted that in April 2013 the TMVP tried to extort the applicant by threatening to kill the applicant with a gun and accepted at [20] that he escaped to Australia because he felt his situation was hopeless.
(vi)At [24] the Authority accepted that although the TMVP may not be operating as a paramilitary group they operate as a political group in the applicant’s home area and has an office there.
(vii)Country information relied by the Authority, at [24], the ACCORD report, supports the fact the former member of the TMVP work closely with the Sri Lankan army and some of its members are involved in criminal activity, including drug-running, extortion and violence.
(viii)The Authority misunderstood the ACCORD report, not considering critical information on TMVP in several parts of that report, once even leaving critical parts within a paragraph.
(ix)The Authority failed to refer to or deal with critical evidence given by the applicant and submissions made by the applicant at the delegate’s interview, which is now evident in the transcript.
(x)Failed to engage in a comparison of threat of extortion the TMVP members/former members posed to the applicant around the two relevant dates which were 4 August 2013 and 25 September 2017 respectively which was necessary to form its non-satisfaction.
1(b)The Authority committed jurisdictional error in that it asked a wrong question or considered a wrong issue: High Court decision [Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30] at [82]
Particulars
(xi)The critical issue or question for the Authority was not whether the persons who were operating as TMVP paramilitary group on 4 April 2013 were still operating as paramilitary members around 25 September 2017, but whether they were still engaged in criminal activities such as extortion.
(xii)That is, the proper and fuller question for the Authority should have been, whether between 4 April 2013, when the applicant was last seriously harmed by TMVP members and 25 September 2017, when the Authority made its decision, the country situation around the applicant’s area has sufficiently changed regarding the criminality of TMVP members to such an extent, that there was no reasonable possibility that they still would have been interested in extorting the applicant had he returned around 25 September 2017.
ALSO Repeat all the particulars stated under Ground 1(a) above from (i) to (x) under Ground 1(b)
The evidence before the Court comprises:
(a)the court book filed by the Minister on 23 January 2018; and
(b)an affidavit affirmed by the applicant and filed on 19 December 2023, annexing country information that was before the Authority; and
(c)a second affidavit affirmed by the applicant and filed on 19 December 2023, annexing a transcript of his protection visa interview.
CONSIDERATION OF APPLICANT’S GROUND
The applicant and Minister have both described part 1(a) and part 1(b) of the applicant’s ground as alternative forms of expressing the same error, relying on the same particulars. The alleged jurisdictional error arises in circumstances where, as described above, the Authority largely accepted the applicant’s claims of past harm at the hands of the TMVP but was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm from the TMVP, or any of its former members, in the reasonably foreseeable future.
In considering whether there is jurisdictional error arising from a particular finding or particular reasoning of the Authority, it is appropriate to identify the finding or reasoning with precision. The first particular of the applicant’s ground refers to the Authority’s finding at [25] and [31].
The Authority’s finding at [31] was expressed in the following terms:
I am not satisfied the TMVP, or any other group, has an interest in targeting the applicant for extortion because of his time in either the Middle East or Australia, or his refusal to pay them in 2013.
This finding took into account an earlier finding made by the Authority at [25]. The final sentence of [25] reads:
… on the evidence I am not satisfied that TMVP is still operating as a paramilitary or that any of its former members have an interest in targeting the applicant, or his family, on account of his perceived wealth, or his refusal to pay them in 2013, should he return to Sri Lanka.
I proceed on the understanding that it is these findings that the applicant impugns by this ground.
Was the Authority decision unreasonable, illogical or irrational?
In asserting that the Authority’s finding was unreasonable, the applicant relied on well-known authorities addressing illogicality or irrationality.
One such authority was the High Court’s judgment in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS). In that case, Crennan and Bell JJ explained at [135]:
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.
The applicant also relied on ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15), where the Full Court referred to SZMDS and then said at [47]:
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Offıce of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
I do not understand either party to dispute the principles referred to in these cases. While the parties, and in particular the applicant, referred to other cases in their submissions, including to give examples as to when the courts have been willing to find that the high threshold to establish illogicality or irrationality is met, those cases do not materially add to the principles discussed in SZMDS and ARG15, to the extent that those principles are relevant to the resolution of the application presently before the Court.
Based on the particulars to the applicant’s ground, as explained in his written and oral submissions, it appears that there are three reasons why the applicant says that the Authority decision was illogical or irrational:
(a)the Authority misunderstood country information before it, in particular a report by the Austrian Centre for the Country of Origin and Asylum Research and Documentation (ACCORD) titled Sri Lanka COI Compilation December 2016 (ACCORD report);
(b)the Authority failed to engage with some of the applicant’s evidence given at his protection visa interview; and
(c)the Authority failed to engage in a comparative analysis of the threat to the applicant of extortion by the TMVP as at April 2013 and the time of the Authority’s decision.
I address each of these reasons in turn.
Country information
The Authority addressed some of the relevant country information at [24] of its reasons, where it said (emphasis added, footnotes omitted):
Country information before the delegate indicates that TMVP is no longer operating as government-sponsored paramilitary and has joined the mainstream political process as part of the United People’s Freedom Alliance (UPFA). In October 2015, the former head of TMVP, Pillayan, was arrested for his suspected involvement in the murder of parliamentarian, Joseph Pararajasingam, and in 2016 the former head of the Karuna Group, Karuna Amman, was arrested on fraud charges; indicating such figures no longer have impunity for their actions. While in the post-civil war era former paramilitaries have taken on the characteristics of criminal gangs, with the exit of former President Rajapaksa in 2015, such groups have lost much of their influence and relevance. In December 2016 the International Crisis Group reported that former [Liberation Tigers of Tamil Eelam (LTTE)] and Tamil militants may still be working with the [Sri Lankan Army (SLA)] as informants, or intelligence operatives, and may be involved in criminal activities, but that there are no longer any active paramilitary groups in Sri Lanka.
The Authority cited the ACCORD report for the emphasised portions of the extract in the preceding paragraph.
Part of the ACCORD report is in evidence before the Court (annexed to one of the applicant’s affidavits). The section of the ACCORD report that the Authority appears to have relied on in support of its findings at [24] reads (emphasis as set out in the applicant’s submissions):
2.1.4 Paramilitary
In an e-mail response dated 26 December 2016, Alan Keenan, Sri Lanka senior analyst at the International Crisis Group, denies the question whether there are any paramilitary groups or paramilitary wings of parties in Sri Lanka that are still active and/or influential. Keenan continues to state:
“There are no longer any active paramilitaries in Sri Lanka. There are ex-LTTE and ex-Tamil militants from other parties who are reportedly working with the Sri Lanka military as informants and/or intelligence operatives. Some of these, according to some reports, may be involved in criminal activities, including drug-running, extortion and violence. However, there is little hard evidence and such activities do not appear to the work of clearly identifiable groups. Recent allegations of existence of a criminal network (in the northern Jaffna peninsula) known as the ‘Aava group’ and with links to the Sri Lankan military are murky and unconfirmed. There are certainly ex-Tamil militants, some of whom are working with and for the military (or possibly other government intelligence services), but exactly what they are doing and on whose orders remains unclear”. …
The applicant also highlighted in his submissions the following further parts of the ACCORD report (emphasis as set out in the applicant’s submissions):
The September 2015 [(Office of the United Nations High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL)] report provides the following information on a paramilitary group called the Karuna Group and the political party Tamil Makkal Viduthalai Pulikal (TMVP):
“…
144. The Karuna Group formed an associated political party called the Tamil Makkal Viduthalai Pulikal (TMVP) which was officially registered in 2007. TMVP contested the Eastern Provincial Council elections in 2008, winning a majority. Karuna himself became Minister of National Integration under the Rajapaksa Government in March 2009.” …
…
In February 2014, the London-based human rights organisation Child Soldiers International published a briefing on accountability for child recruitment and use in Sri Lanka, which states that “[t]he government has also taken no action against and continued to ignore allegations of underage recruitment by the TMVP including forces under the control of Inya Bharathi”… The annual report on promoting reconciliation, accountability and human rights in Sri Lanka published by the Human Rights Council (HRC) in June 2016 notes that “paramilitary leaders, allegedly responsible for killings, abductions and widespread recruitment of child soldiers, continue to hold public position and have faced no criminal investigation”…
…
In October 2014, Amnesty International (AI) published a report on the protection of human rights in Sri Lanka which provides the following information on extrajudicial executions and deaths in custody:
“Amnesty International continues to receive credible reports of the unlawful use of force and violations of the right to life by state agents and by paramilitary groups under the control of the armed forces, including extrajudicial killings and suspicious deaths in custody. […] Parties that have been accused of such abuse include police and army personnel, members of the Eelam People’s Democratic Party (EPDP); the Karuna faction within the ruling United People’s Freedom Alliance (UPFA); and the Tamil Makkal Viduthalai Pulikal (TMVP). The Sri Lankan authorities have taken insufficient measures to prevent violations by government forces and their affiliates by failing to adequately discipline personnel and by failing to ensure that paramilitary agents and political parties aligned with the government are disarmed. They have failed to effectively investigate alleged extrajudicial executions, and have not prosecuted those suspected of the crimes.” …
The applicant submitted that the Authority did not ‘properly’ consider the ACCORD report and that the sections extracted above give a ‘fuller picture’ about the TMVP and do not support the Authority’s findings in respect of the TMVP. More specifically, the applicant submitted that:
(a)it is noteworthy that, in its reasons at [24], the Authority omitted the reference to drug-running, extortion and violence by ex-militants that appears in the extract of the ACCORD report set out at [32] above;
(b)it is important that the TMVP was registered as a political party in 2007 and won an election at the Provincial Council level in 2008, because this indicates that, when they extorted and harmed the applicant in 2013, they were already operating as a political group and not just a paramilitary group; and
(c)the fuller picture that emerges from the ACCORD report is that TMVP members were still involved in criminal activities.
The Minister submitted that there is no basis to infer that the Authority erred in its understanding of the ACCORD report or to find that it overlooked information in the report. The Minister submitted that the Authority correctly stated the effect of the ACCORD report, being that these groups are no longer as influential as they once were, and that the Authority’s reference at [24] to information that ‘former LTTE and Tamil militants may still be working with the SLA as informants, or intelligence operatives, and may be involved in criminal activities, but that there are no longer any active paramilitary groups in Sri Lanka’ is a clear reference to the highlighted portion of the extract of the ACCORD report set out at [32] of these reasons for judgment. The Minister further submitted that the Authority’s failure to refer to all parts of the ACCORD report does not mean that the Authority failed to consider all parties of the ACCORD report.
Insofar as this ground relates to the failure to consider information, the parties referred to three main cases in their submissions.
In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, the Full Court (Kenny, Griffiths and Mortimer JJ) (MZYTS) said at [52]:
In the present case, the issue is squarely whether the Tribunal’s reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in [Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR)], a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant’s claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
In Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 (SZSRS), the Full Court (Katzmann, Griffiths and Wigney JJ) said at [34]:
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
In AWG18 v Minister for Home Affairs [2020] FCA 744 (AWG18), the Federal Court (Greenwood J) said at [138]:
However, it seems to me that the difficulty is this. Whilst it is true that a failure to refer to any of the three reports relied upon by the appellants, or mention any of the matters emphasised in the text of those reports (kind of harm; place of harm), urged upon the decision‑maker, does not, of itself, mean that the reports were ignored or overlooked, the decision in question here falls into that class of case where an inference arises that if the three reports and the emphasised passages from them had been considered, one could expect that that matter would have been referred to in the decision even if it were then rejected: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [52] (“MZYTS”); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33] (“SZSRS”).
I do not consider that the manner in which the Authority relied on the ACCORD report in this matter gives rise to jurisdictional error.
First, I accept the Minister’s submission that the final sentence of [24] of the Authority’s reasons is a clear reference to the portion of the ACCORD report referred to at [32] of these reasons. The Authority’s omission of the words ‘including drug-running, extortion and violence’ do not indicate that the Authority did not have regard to those words. They are examples of the ‘criminal activities’ referred to in the ACCORD report. The Authority, in summarising the information in the ACCORD report, clearly referred to and acknowledged the criminal activities, without expressly identifying the examples. Considering the reasoning in cases such as MZYTS, SZSRS and AWG18, I cannot conclude that the Authority failed to consider that information that the ‘criminal activities’ referred to in the report included activities such as drug-running, extortion and violence.
Second, I do not consider that the information indicating that the TMVP was registered as a political party in 2007 and won an election at the Provincial Council level in 2008 was of such significance to the applicant’s claims that the Authority’s failure to expressly refer to it in its reasons gives rise to an inference that it was overlooked by the Authority. The significance to the applicant’s claim, as identified in his submission to the Court, is that the information shows that the TMVP was already operating as a political party in 2013, when it accepted that the applicant was the victim of extortion and violence by the TMVP. However, the information in the ACCORD report does not suggest that, upon registering as a political party, all paramilitary operations of the TMVP immediately ceased, and the Authority did not find that this was the case. Rather, the Authority was not satisfied that the TMVP was still operating as a paramilitary at the time of its decision in 2017. There is no inconsistency between country information suggesting that the TMVP registered as a political party in 2007, the applicant being the victim of criminal activities by the paramilitary arm of the TMVP in 2013 and the Authority’s finding that the TMVP was no longer operating as a paramilitary in 2017, particularly in the light of its observation at [24] that, while former paramilitaries had taken on the characteristics of criminal gangs in the post-war era, such groups lost much of their influence and relevance with the exit of former President Rajapaksa in 2015 (that is, in the intervening period between when the applicant last faced harm and the Authority decision).
Third, I do not accept that the Authority decision is affected by illogicality or irrationality on the basis that other parts of the ACCORD report paint a ‘fuller picture’ than what is reflected in the Authority’s reasons. The ACCORD report collates information from a variety of sources that were produced on various dates. Much, although not all, of the information relied on by the applicant in the ACCORD report is based on sources originally published in 2014 and 2015. The Authority’s reasons reflect the Authority relying more heavily on the most recent country information in relation to the claimed ongoing threat posed by the TMVP, namely that published in 2016. This course was open to the Authority, particularly in circumstances where one of the events relevant to the diminished relevance of former paramilitaries was the change of president in 2015. As the Full Court (Gray, Tamberlin and Lander JJ) said NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] (emphasis added):
… The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
Evidence given at protection visa interview
I then turn to the second reason advanced by the applicant as to why the Authority decision is illogical or irrational.
The applicant identified the following parts of his evidence in his protection visa interview as being relevant to the resolution of this ground.
When the applicant was invited to comment on the situation in Sri Lanka following the change in government in Sri Lanka and the significant moves toward reconciliation that had taken place, he said:
Okay, so, although there has been a change in the head of state, in small villages such as ours, that change doesn’t come across as – because the same problems that we face previously still remain in the villages. Okay, so, the Karuna Group is still present and they are still associated with the Sri Lankan authorities and they use that association or the affiliation with the Sri Lankan government to carry out these things. So, if any international or foreign dignitaries were to be taken, they will be taken predominantly maybe to Colombo or Kandy, these sort of places, no one is ever taken to a small village like ours where the camp Sri – the Sri Lankan army camp is still present, the paramilitary are still present, no one goes to such places. Yeah, and in the event that some foreign person or dignitary were to visit by chance that area, it would already be pre-determined as to who would be speaking to them and everything that’s meant to be said to them would be all pre-arranged before they reach there. So, the army and the [Criminal Investigation Department (CID)] or the intelligence would already have pre-arranged with people so people like us would never even be given a chance to approach anybody, they would have already set up some people, their own people to talk and to – to disclose the things they want said.
In response to information from the delegate that Karuna has been a politician since 2008 with limited activity as a paramilitary and that the delegate was unable to identify any information relating to paramilitary activities on the part of the TMVP in 2016, the applicant said:
Okay, so although Karuna might have joined the mainstream politics, his people under him still are there in the villages and they hold – they have a political office though they may not call it TMVP. They have an office and they are still very much present. Yeah, so it’s no longer called the TMVP office or anything like that because then people will be alerted and they will be wary, but they just call it a – a political office and – but the people that are there are very much those who used to be in the TMVP, the same people that are there. Yeah, so only Karuna has been arrested and detained possibly, but no one else that was – came alongside him has been arrested or charged, yeah.
After taking a break in the interview the applicant was invited to make any comments in response to concerns raised, and information given, by the delegate in the interview and said:
Okay, so at this present moment in time, I am not in a position to return. Okay, so in our local area, the TMVP are still present and if I were to ask for – make a complaint or seek protection from the local authorities there, which is the Police maybe, then they – they won’t provide me with that protection because they are aligned and furthermore, the information about the fact that I have come and made a complaint is also passed on back to them.
The Authority referred to some parts of this evidence at [25] of its reasons, where it said:
During the [Safe Haven Enterprise visa] interview the delegate put country information to the applicant, which indicates that paramilitary groups are no longer operating in Sri Lanka and that overall the situation for Tamils has improved greatly. The applicant responded that the Karuna Group and TMVP are still operating as government-backed paramilitaries, even though both Pillayan and Karuna are currently in custody. The applicant further added that TMVP still have an office in his village… staffed by the same individuals, but in order not to alarm the local population it is just called a “political office”. This is consistent with country information before the delegate which indicates the TMVP is a legitimate political party within the UPFA coalition, and I accept they have an office in the applicant’s home area. However, on the evidence I am not satisfied that TMVP is still operating as a paramilitary or that any of its former members have an interest in targeting the applicant, or his family, on account of his perceived wealth, or his refusal to pay them in 2013, should he return to Sri Lanka.
The applicant submitted that it is important that, where the Authority referred to those parts of the protection visa interview extracted above, the Authority did not take issue with the applicant’s evidence that the TMVP is still operating as a government-backed paramilitary and, in order not to alarm the people, their office is called a political office. The applicant submitted that the Authority’s finding in the final sentence of its reasons at [25] was rather abrupt and did not demonstrate weighing up of information going both ways.
To support his submission, Counsel for the applicant cited Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62, where the High Court (McHugh, Gummow, Callinan and Heydon JJ) observed at [42]:
At times the Minister’s argument appeared to assume that once independent information exists, no contrary evidence from an applicant, however intrinsically credible, can be accepted. That assumption overlooks the fact that independent information can sometimes be vague, fluid or out of date, and that acceptance of a witness on some points can assist in reaching a conclusion that the witness is acceptable on others as well. While the fact that the Tribunal member made no finding on a matter may indicate that she did not consider it to be material, it does not follow that she must have considered it to be immaterial.
The Minister submitted that it is a matter for the Authority to decide what evidence it refers to and the weight to be attributed to the evidence. The Minister further submitted that the applicant’s submissions invite the Court to engage in impermissible merits review.
I do not accept that the Authority failed to have regard to the evidence given by the applicant at his protection visa interview or that its consideration of that evidence discloses irrationality or illogicality in the Authority’s reasoning. The Authority was clearly cognisant of the gist of the applicant’s evidence, being that he believes he will still face a risk of harm, if returned to Sri Lanka, from the TMVP who continue to operate in his home area and have an office that is referred to as a political office. The Authority accepted the applicant’s evidence insofar as it was supported by country information, in particular, accepting that the TMVP has an office in the applicant’s home area. Otherwise, it is apparent from the Authority’s reasons that the Authority preferred independent country information in reaching its finding that the TMVP was no longer operating as a paramilitary.
I do not accept the applicant’s submission that the conclusion in the final sentence of [25] of the Authority’s reasons is abrupt and does not disclose the weighing of information going both ways. The Authority’s reasons at [25] need to be read in the context of its reasons as a whole. The Authority had previously set out a summary of the country information it relied on to find that the TMVP was no longer operating as a paramilitary and it had earlier made findings that the applicant’s wife had not been approached by the TMVP in the four years since the applicant departed Sri Lanka for Australia (although it accepted that the TMVP monitored the applicant’s wife’s movements in the immediate period following his departure).
Failure to conduct comparative analysis
The final particular to the applicant’s ground, insofar as it alleges that the Authority made a finding that was illogical or irrational, refers to the Authority’s failure to engage in a comparison of the threat of extortion by former or current TMVP members to the applicant as at April 2013, when the applicant last faced harm, and as at the date of the Authority decision in 2017. This particular significantly overlaps with the second part of the applicant’s ground, which asserts that the Authority asked itself the wrong question, and it is addressed below in the consideration of the second part of the applicant’s ground.
Conclusion in relation to the assertion of unreasonableness, illogicality or irrationality
Taking into account the matters raised by the applicant, both individually and cumulatively (including the matters discussed below), I am not satisfied that the Authority decision is one that a logical and rational person could not have reached on the evidence before the Authority. There was a logical connection in the present case between the evidence before the Authority and conclusions reached by the Authority. The applicant’s assertion of unreasonableness, illogicality or irrationality is not established.
Did the Authority ask itself the wrong question?
The applicant submitted that the Authority’s findings unequivocally showed that it accepted he had a well-founded fear of persecution at the time he left Sri Lanka in April 2013. The applicant submitted that, in circumstances where the Authority then decided whether the applicant would face serious harm at the time of its decision in August 2017, the critical question or issue for the Authority was not ‘whether the persons who are operating as TMVP paramilitary group on 4 April 2013 were still operating as paramilitary members [in August] 2017’, but whether they were still engaged in criminal activities such as extortion. The applicant submitted that the Authority should have asked whether, between April 2013, when the applicant was last seriously harmed by TMVP members, and the time of the Authority’s decision in 2017, the country situation around the applicant’s area had sufficiently changed such that there was no reasonable possibility that the TMVP would still have been interested in extorting and harming the applicant had he returned to Sri Lanka at that time.
The applicant submitted that the Authority’s conclusion that it was not satisfied the TMVP or any other group had an interest in targeting the applicant because of his time in the Middle East or Australia, or his refusal to pay them in 2013 had to be viewed in the context of the following findings:
(a)the TMVP was no longer operating as a government-sponsored paramilitary and was no longer an active paramilitary group;
(b)the TMVP has a political office in the applicant’s home area;
(c)the TMVP operated as a criminal gang post-war but its influence reduced after 2015;
(d)is still working with the Sri Lankan Army as informants or intelligence operatives;
(e)the TMVP may still be involved in criminal activities, including drug-running, extortion and violence;
(f)the TMVP extorted the applicant in 2008 and tried to extort him in January 2013 when it seriously harmed him, resulting in his hospitalisation;
(g)the TMVP threatened to kill the applicant with a gun in April 2013 when its members tried to extort the applicant; and
(h)the TMVP monitored the applicant’s movement soon after he left Sri Lanka.
In support of his submission, the applicant in his written submissions set out a table providing a comparison of various aspects of the TMVP’s operation as at April 2013 and as at September 2017. With respect, this table does not assist in the resolution of this judicial review application. Based on the answers provided by Counsel for the applicant to questions I asked about the table at the hearing, it appears that the information included in the table is based on a mixture of the Authority’s findings, country information, the applicant’s evidence and subjective assessment on the part of the applicant or his representative. The table would be relevant if the Court were engaging in merits review, but that is beyond the jurisdiction of the Court.
The Minister noted that the applicant’s ground is based on the High Court’s judgment in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82], where the High Court stated that ‘asking a wrong question… in a way that affects the exercise of power is to make an error of law’ (emphasis in Minister’s submissions). The Minister submitted that the question the Authority was required to consider was whether the applicant faced a real risk or real chance of suffering harm if he returned to Sri Lanka and that the Authority considered whether the applicant would face a real chance of serious harm or a real risk of significant harm on the basis that the TMVP, or any other group, had an interest in targeting him for extortion. The Minister submitted that it was not necessary for the Authority to consider whether the country situation had changed. While the applicant’s past experiences might assist the Authority in assessing the likelihood of harm, the Authority was not required to engage in a comparative assessment of the criminality of TMVP members in 2013 and 2017. The Minister submitted that the Authority considered the evidence before it and found that there was not a real risk or a real chance that the applicant would face serious or significant harm on his return to Sri Lanka.
I accept the Minister’s submissions in relation to this part of the applicant’s ground. In assessing whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, the Authority was required to assess, amongst other things, whether there was a real chance that the applicant would suffer serious harm for one of the five reasons mentioned in s 5J(1)(a) of the Migration Act if returned to Sri Lanka: see ss 5H and 5J of the Migration Act and, in particular, s 5J(1)(b) and 5J(4)(b). The assessment is forward looking and required the Authority to consider whether the applicant faced a real chance of serious harm in the reasonably foreseeable future: EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135 at [100]; CDW18 v Minister for Home Affairs [2019] FCA 270 at [14]. In assessing whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act, the Authority was required to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm. Again, this is a forward-looking assessment.
It is evident from the Authority’s reasons that the Authority understood the nature of its task and that its assessment was forward-looking. While the Authority accepted that the applicant had faced harm in the past, in conducting its forward-looking assessment, the Authority considered country information regarding changed circumstances in Sri Lanka between the time the applicant faced harm and the Authority’s decision, as well as the particular circumstances of the applicant and his family, including that his wife had not been approached since he left Sri Lanka. The Authority’s conclusion that the applicant did not face a real chance of serious harm or a real risk of significant harm from the TMVP or any other group was open to it on the evidence before it and taking into account the findings it made. The Authority was not required to engage in any comparative analysis of the situation in 2013 and the situation in 2017.
I am not satisfied that the Authority asked itself the wrong question.
CONCLUSION
I am not satisfied that the ground advanced by the applicant establishes jurisdictional error in the Authority decision, whether that alleged jurisdictional error is described as illogicality or irrationality, or as the Authority asking itself the wrong question, or any way that may arise from the way in which the ground has been advanced by the applicant. It follows that the application for judicial review must therefore be dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 29 February 2024
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