EHA17 v Minister for Immigration

[2019] FCCA 158

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHA17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 158

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – whether the Authority considered all of the applicant’s claims – whether the Authority’s decision was unreasonable – whether the Authority misinterpreted or misapplied the law.

Legislation:
Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.473DC and 473DD

Applicant: EHA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORTY

File number: MLG 2068 of 2017

Judgment of: Judge Riley

Hearing date: 16 October 2018

Date of last submission: 30 October 2018

Delivered at: Melbourne

Delivered on: 30 January 2019

REPRESENTATION

Counsel for the applicant: Anthony Krohn

Solicitors for the applicant: Ambi Associates

Counsel for the first respondent: Nick Wood

Counsel for the second respondent: No appearance

Solicitors for the respondents: Clayton Utz Lawyers

ORDERS

1. The decision of the Immigration Assessment Authority made on 30 August 2017 in matter number IAA17/01997 be set aside.

2. The matter be remitted to the Immigration Assessment Authority for determination according to law.

3. The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2068 of 2017

EHA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”).  In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a safe haven enterprise (subclass 790) visa. 

The applicant’s claims

1. At paragraph 6 of its reasons for decision, the Authority summarised the applicant’s claims for protection as follows:

   ·The applicant is a Tamil from Trincomalee District, Eastern Province, Sri Lanka.

   ·He grew up in an area which came under intense fighting in the civil war.

   ·In 1985 his father was killed by the army. The applicant has provided a copy of his father’s death certificate. The applicant was very young when his father was killed and this has been an emotional blow to him.

   ·His brother was arrested and killed by the army.

   ·The applicant and his family were displaced due to the civil war and stayed in an internally displaced person’s (IDP) camp until 1987. The family was resettled in their village but because of their past experience they lived in fear.

   ·In 1990 the applicant’s brother-in-law was taken by the army and presumed killed; a death certificate has been issued for the applicant’s brother-in-law and the applicant has provided a copy of this certificate.

   ·The applicant was displaced in 2004 and lost his job in construction following the tsunami. He farmed the family land and supplemented his income driving a taxi.

   ·In 2006 his area came under the control of the LTTE. All villagers were required to undergo compulsory LTTE self-defence training and the applicant undertook training from March to June 2006. To avoid conscription by the LTTE the applicant married in June 2006.

   ·In August 2006 the applicant and his wife were forced to flee their village when it came under attack. They were stopped by army soldiers and questioned. The applicant and his wife were separated and he was taken with a number of other Tamils to an army camp. In the camp he was questioned by the army, and then by members of the paramilitary Karuna group. He was physically abused while held. After approximately five days he was reunited with his wife and they were both taken into an IDP camp.

   ·The applicant was resettled in his village in 2008 and opened a restaurant. Sometime after this the army established a checkpoint nearby.

   ·The applicant was aware of disappearances and mistreatment of Tamils in the local area. He believes that the authorities viewed all Tamils as being LTTE supporters because the area had previously been under LTTE control.

   ·In July 2012 the applicant attended a family function one evening and left his father-in- law to look after the restaurant. That night three or four people with weapons came to the applicant’s business looking for the applicant; he believes they were from either the army or the Criminal Investigation Department (CID). The applicant believed these people came at night because they intended to harm him. He believes that if they had only intended to question him they would have come during the day. The applicant was fearful for his safety and was concerned he could be taken and killed like others he had heard about, or like his family members in the past.

   ·The applicant travelled to Colombo in August 2012 and departed Sri Lanka illegally shortly after.

   ·The applicant fears that on return to Sri Lanka he will be detected at the airport, or soon after, and that he will be harmed by the authorities who suspect all Tamils of being LTTE supporters. He fears that Tamils are persecuted and that the authorities can use the Prevention of Terrorism Act (PTA) at any time to detain Tamils and not have to explain why. He fears his life will be in danger and that he will not be able to run his business and that he will be forced to pay bribes to government officials.

   ·The applicant referred to advice issued by the Department of Foreign Affairs and Trade (DFAT) reporting on the security environment in Sri Lanka.

   ·The applicant fears that Tamils are restricted in movement, their land has been seized and they are not able to advance in business.

   ·In a post-interview submission the applicant referred to discrimination against Tamils in education, employment and land allocation.

   ·The applicant is learning the English language, is employed in Australia and has submitted a letter of support from his employer.

The Authority’s reasons

1. In his written submissions filed on 26 September 2018, the applicant set out the following summary of the Authority’s reasons for decision:

   11. The Authority found that the Applicant’s history was truthful, but not that he was objectively at risk of harm.

   12. The Authority found that there may be a risk of harm for returnees with a suspected LTTE profile, but the applicant was not such a person.

   13. The Authority noted that prison conditions in Sri Lanka were poor, but did not consider that if the applicant spent a brief period in prison as a person who had illegally departed from Sri Lanka this would amount to serious harm such as to be persecution, such that the applicant was a person in respect of whom Australia owed protection obligations under the Refugees Convention.

   14. The Authority also was of the view that nor was any harm the applicant might suffer in prison intentional such as to be torture, cruel or inhuman or degrading treatment or punishment such as to be “significant harm” within the meaning of the Act, and to give rise to a right to complementary protection under the Act.

   15. The Authority ultimately found that the Applicant was not a person to whom Australia owed protection obligations and affirmed the decision to refuse to grant the visa.

Ground 1

1. The first ground of review in the application filed on 26 September 2017 and amended on 26 September 2018 (“the application”) is:

   The Second Respondent (“the Authority”) fell into jurisdictional error in that it failed to consider a relevant consideration, integer of the claim, or material question raised by the material before the Authority, or important information or material.

2. The first ground contains six particulars, which will be considered in order.

Particular 1(a)

1. The first particular to ground 1 is as follows:

   The Authority did not consider whether there was a real chance the Applicant may suffer serious harm or significant harm while in detention or under the control and power of the Sri Lankan security forces, police or pro-government paramilitary forces, being harm not aimed at him because of an imputed LTTE profile or antigovernment profile, but simply as being a person or Tamil person in detention or under the power of the authorities, whether by assault or torture or intentional harm.

2. The first particular to ground 1 contains numerous sub-particulars.  They are that the Authority failed to consider whether the applicant, simply because he was a Tamil, was at real risk of:

   a)serious harm; or

   b)significant harm,

   while he was:

   c)in detention; or

   d)under the control and power of:

   i)the Sri Lankan security forces;

   ii)the police; or

   iii)pro-government paramilitary forces.

3. There was some dispute between the parties about whether the applicant had raised a claim to fear serious or significant harm, simply on the basis of being a Tamil, while in detention or under the control of the named entities.  The applicant referred to numerous passages in the materials where he said the claim was made, including some passages that were in new information that the Authority decided not to take into account.  In any event, the discussion below proceeds on the assumption that the claim was made.

4. In relation to serious harm, the Authority said at paragraph 14 of its reasons for decision:

   I accept that from his past experience the applicant has a subjective fear and that he was concerned about the visit in July 2012, and I have had regard to the comments in the submission to the IAA about the effect of fear in the general Tamil population. However, considering the objective evidence I am not satisfied that his fear of harm is well-founded.  I note the applicant’s reference in his SHEV interview to arrests and disappearances of Tamils and he cited a recent report of the arbitrary killing of two Tamil university students. However, overall there has been a significant change in the country circumstances since the end of the war and the defeat of the repressive Rajapaksa government in 2015. The Emergency Regulations that provided the security authorities broad powers to arrest and detain suspects have been lifted. I accept that the [Prevention of Terrorism Act] remains in force, and there remain credible reports of ongoing arrests and disappearances in Sri Lanka. While there has been criticism of the Sirisena’s government’s slow progress with reform of the PTA, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict and the US Department of State reported 162 individuals being detained under the PTA in 2015. DFAT has been advised by the Sri Lankan Government that no returnee from Australia to Sri Lanka has been charged under the PTA. The International  Truth  and Justice  Project  report noted that human rights violations by the security  forces  continue  with  impunity  and  Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with  their families. The Freedom From Torture report 10 builds on the data and analysis provided in that organisation’s 2015 report, “Tainted Peace: Torture in Sri Lanka since May 2009”, which highlighted that the majority of the 148 people in that study had described an  association  with the LTTE. However I have not accepted that the applicant was imputed with an LTTE profile at the time he left Sri Lanka and I am not satisfied that he would be perceived as such  on return to Sri Lanka now. Considering the country information I am not satisfied there is a real chance that the applicant would be detained under the PTA as he fears, or experience other harm. (citations omitted)

5. At paragraph 21 of its reasons for decision, the Authority considered that the applicant, although travelling on a temporary travel document, would not face serious harm upon return at the airport as the authorities applied standard procedures regardless of a person’s ethnicity and did not subject people to mistreatment during processing at the airport.

6. At paragraph 22 of its reasons for decision, the Authority considered that the applicant may be questioned by the police at the airport and charged under the Immigrants and Emigrants Act 1949 (Sri Lanka).  The Authority accepted that the applicant may be held on remand for up to 24 hours in crowded and unsanitary conditions.  However, the Authority considered that this treatment arose from a law of general application.  As such, it was implicit in the Authority’s reasons for decision that the treatment of the applicant while on remand would not be for reasons of his Tamil ethnicity and, as such, would not constitute serious harm for the purposes of the Refugee Convention.

7. At paragraph 26 of its reasons for decision, the Authority accepted that the applicant may face a brief period of imprisonment for his breach of the Immigrants and Emigrants Act 1949 (Sri Lanka).  However, the Authority did not accept that the brief period of imprisonment would rise to the level of serious harm. 

8. Moreover, at paragraph 28 of its reasons for decision, the Authority did not accept that the Immigrants and Emigrants Act 1949 (Sri Lanka) was discriminatory in its terms or that it was applied in a discriminatory manner.  The Authority stated expressly in paragraph 28 of its reasons for decision that the investigation, prosecution and punishment of the applicant under the I & E Act would be the result of a law of general application and therefore did not amount to serious harm for the purposes of the Refugee Convention.

9. The Authority concluded its consideration of whether the applicant faced serious harm in paragraph 30 of its reasons for decision which is as follows:

   I have considered the applicant’s claims individually, and whether on a cumulative basis of his ethnicity, his training with the LTTE and his familial links to family members killed during the war, together with being from a former LTTE controlled area and having departed Sri Lanka illegally and claimed asylum and I am satisfied that there is not a real chance he would experience [serious] harm in the foreseeable future in Sri Lanka.

10. The reference in that paragraph to the applicant’s ethnicity is clearly a reference to his Tamil ethnicity.  In my view, the Authority was well aware that the applicant feared harm simply on the basis of his Tamil ethnicity.  The passages referred to above from the Authority’s reasons for decision show that it accepted that Tamils faced discrimination in Sri Lanka but did not accept that they faced serious harm on account of their ethnicity alone.  That conclusion incorporates harm from the police, security forces or pro-government paramilitary forces.

11. In relation to complementary protection, the Authority said at paragraph 34 of its reasons for decision:

    I accept that the applicant will be returning to Sri Lanka as a person of Tamil ethnicity and he fears discrimination on this basis. DFAT report that while societal discrimination remains evident in Sri Lankan society at a moderate level there are no official laws or policies that discriminate against Tamils in relation to access to education, employment or access to housing23. I am not satisfied on the evidence before me that any discrimination the applicant may face will involve deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. I note that the applicant completed his education to his O Levels and was in regular employment in construction until the tsunami and then after that he was able to farm the family land and establish his own business. I am not satisfied the applicant would face a real risk of significant harm in Sri Lanka as a Tamil.

    23    DFAT, “DFAT Country Information Report – Sri Lanka”, 24 January 2017, CISEDB50AD105.

12. The Authority accepted in paragraph 36 of its reasons for decision that the applicant may be investigated, detained and held on remand as a person who had departed Sri Lanka illegally.  However, the Authority did not accept that this process would amount to significant harm.  Moreover, the Authority considered at paragraph 37 of its reasons for decision that, even if the applicant were subjected to a period of detention for his illegal departure, there was not the required intention for the applicant’s treatment to amount to significant harm.

13. In my view, in the paragraphs referred to above, the Authority showed that it had considered whether the applicant faced a real risk of significant harm simply on account of being a Tamil.  The Authority accepted that Tamils suffered a level of societal discrimination which did not reach the level of significant harm.

14. The first aspect of ground 1 is not made out.

Particular 1(b)

1. The second particular to ground 1 is as follows:

   The Authority did not consider and determine the Applicant’s claim to fear abduction or extortion or death as a person with any combination of the factors that he was Tamil, a businessman, from the East or perceived as wealthy. (CB 89, 240-242, 244, 458)

2. The applicant said the claim was made in his statement dated 16 May 2016 in support of his visa application:

   a)in paragraph 2 at CB240, where the applicant said:

   One day in July 2012, I went to my cousin’s house with my wife to participate in a function to welcome my cousin’s new baby into the family. When I returned home from the function that night, my father-in law informed me that three or four people possessing weapons came to … my business place. They enquired about me and my whereabouts and they would not tell my father-in-law why there (sic) were asking about me. After that, I was too afraid to carry on my business. This is because the incident closely resembled the incidences (sic) that happened to my Father, Brother and Brother-in-law [who had been killed or presumed killed].

   b)in paragraph 4 at CB241, where the applicant said:

   So when I heard from my father-in-law that some people carrying weapons came looking for me, I was reminded of the incidences (sic) involving my Father, brother and brother-in-law and was terrified that I was going to be killed as well. That is why I was too afraid to carry on my business and stayed in my parents-in-law’s house. During that time, I was living in fear and was very scared to get out of the house.

   c)in paragraph 3 at CB242, where the applicant said:

   When I found out that some people carrying weapons came looking for me, I was reminded of my Father, brother and brother-in-law who were taken away in the exact same manner and I feared for my life. If I were to return to Sri Lanka, I’m sure that I would also be taken away and killed like the other male members of my family.

3. I do not accept that the claim was raised in those three paragraphs in the applicant’s statement.  While reference was made to the applicant’s business in the first two of those paragraphs, there was no suggestion that the applicant would be targeted because of his business.  Rather, his place of business was simply the place where the applicant claimed people had looked for him.

4. However, the applicant said that the claim was also raised in a submission dated 18 September 2013 to the Minister’s delegate (CB89), where the applicant’s agent said:

   Convention link:

   The essential and significant reasons why the Applicant fears persecution include:

   1. His ethnicity as a Tamil, particularly as a Tamil businessman from the East or a Tamil businessman from this area who may be perceived as wealthy;

   …

5. I accept that the claim was raised in that submission.

6. The Minister argued that the Authority had acknowledged the applicant’s claim that he would not be able to run his business on return to Sri Lanka because he would be forced to pay bribes to government officials.  However, the Minister submitted, the Authority had noted at paragraph 13 of its reasons for decision that the applicant had been able to openly run his business after he returned from detention in 2008, and was not satisfied at paragraph 16 of its reasons for decision that, in view of country information, the applicant would not be able to run his business or that he would be forced to pay bribes to government officials.

1. However, the possibility of being required to pay bribes to government officials was not the extent of the applicant’s claim in relation to his business.  In addition to the passage set out above from CB89, the applicant’s agent also said in that submission in the fourth bullet point at CB89 that:

   … At that time [2012] Tamil businessman were regularly disappearing or being abducted for money. …

2. That is a somewhat different point to being forced to pay bribes to government officials.  The Authority did not consider it and thereby fell into jurisdictional error. This aspect of ground 1 is made out.

Particular 1(c)

1. The third particular to ground 1 is as follows:

   In breach of its obligations under sections 473CB, 473DC, 473DD, and Part 7AA of the Migration Act 1958, the Authority did not consider documents and information given in the submission dated 22 March 2017 and given to it by the Applicant’s representative, although in its correspondence and Practice Direction the Authority had invited the Applicant to give new information. (CB 498-499; 512-530; Decision Record [5], CB 541)

2. In relation to particular (c) to ground 1, the Authority said:

   4.The IAA received a submission dated 22 March 2017 on behalf of the applicant. The representative’s submission addresses the delegate’s decision and findings, and to that extent, may be referred to as argument rather than new information. I have had regard to the sections of the submission that address the delegate’s decision and findings.

   5. The submission also referred to country information. With the exception of the International Truth and Justice Project report dated 7 January 2016, which was before the delegate, these reports are new information. I am not satisfied that these reports contain credible personal information. A number of these reports post-date the delegate's decision and on that basis could not have been provided to the Minister. However, the delegate had regard to a wide range of country information regarding general human rights abuses in Sri Lanka and the applicant’s representative referred a number of recent articles and reports to the delegate in her post-interview submission and I am not satisfied that any exceptional circumstances exist that justify the IAA considering the new information. I have not had regard to this information.

3. Section 473DC of the Migration Act 1958 (“the Act”) provides that:

   (1)   Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: 

   (a) were not before the Minister when the Minister made the decision under section 65; and

   (b) the Authority considers may be relevant.

   (2)   The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: 

   (a) in writing; or

   (b) at an interview, whether conducted in person, by telephone or in any other way.

4. Section 473DD of the Act provides that:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: 

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: 

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

5. The applicant argued firstly that the exceptional circumstances referred to in s.473DD(a) of the Act were that the Authority had sent the applicant a practice direction inviting new information. It does not seem to me that the sending of the practice direction could constitute exceptional circumstances. The practice direction is at CB497 to CB501. It was attached to a letter dated 17 February 2017 sent to the applicant. The letter was headed acknowledgement of referral.  It contained an information sheet in English and Tamil and the practice direction.  It all appears to be stock standard material. 

6. Moreover, the practice direction did not invite the applicant to submit new information.  It said:

   23. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

   24. If you want to give us new information, you must also provide an explanation in writing as to why:

   • the information could not have been given to the Department before the decision was made, or

   • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

7. There is nothing in the fact that the Authority sent the applicant the practice direction that could amount to exceptional circumstances.

8. In the alternative, the applicant submitted that the exceptional circumstances consisted of the fact that the applicant’s father, brother and brother-in-law had been abducted and murdered and the applicant himself had been detained and interrogated and subjected to physical abuse.  The applicant conceded that it was for the Authority to decide whether there were exceptional circumstances and the court could not interfere unless the Authority’s conclusion was not reasonably open to it.

9. The applicant’s submission dated 22 March 2017, which contained the new information, did not explain why there were exceptional circumstances justifying the consideration of the new material.  The new material consisted of country information, three items of which post-dated the delegate’s decision. 

10. The first item was an article dated after the delegate’s decision but concerned events which allegedly occurred in 2007 to 2009 (CB515-517).  The applicant did not explain specifically to the Authority or this court how there were any exceptional circumstances that would have justified the consideration of that information.  I am unable to discern any.  It was historical information and not significantly different from other material before the Authority.

11. The second item was an article dated a few days after the delegate’s decision (CB527).  It was written by the Australian Tamil Congress and was very general in nature.  It did not add anything of significance to the country information and other evidence already before the Authority.  The applicant did not explain specifically to the Authority or the court how there were any exceptional circumstances that would have justified the consideration of this material. I am unable to discern any.  The article made generalisations without providing any particulars, or any detail relevant to the applicant’s own circumstances.

12. The third item was an article dated a few days after the delegate’s decision (CB528).  It concerned protests by Tamil women against the military occupation of land.  The applicant did not explain specifically to the Authority or the court how there were any exceptional circumstances that would have justified the consideration of that information. I am unable to discern any.  The article appears to have no connection to the applicant’s own circumstances.

13. I am not persuaded that the Authority made any jurisdictional error in not considering the country information that post-dated the delegate’s decision.  That is, I am not persuaded that the Authority’s decision that there were no exceptional circumstances justifying the consideration of that material was not reasonably open to it.

14. In relation to the material that pre-dated the delegate’s decision, none of it was personal information.  Therefore, it was necessary for the applicant to satisfy the Authority that the material could not have been provided to the delegate.  The applicant has not provided any explanation in relation to that issue.  Consequently, I am not persuaded that the Authority made any jurisdictional error in not considering the new information that pre-dated the delegate’s decision.

15. Particular (c) to ground 1 is not made out.

Particular 1(d)

1. The fourth particular to ground 1 is as follows:

   In the alternative to particular (c) to this Ground, even if the Authority did not invite the Applicant to give new information, nevertheless it was in breach of its obligations under sections 473CB, 473DC, 473DD, and Part 7AA of the Migration Act 1958, because the Authority did not consider documents and information in the submission dated 22 March 2017and given to it by the Applicant’s representative. (CB 512-530; Decision Record [5], CB 541)

2. For the reasons given in relation to particular (c) to ground 1, particular (d) to ground 1 is not made out.

Particular 1(e)

1. The fifth particular to ground 1 is as follows:

   The Authority did not consider whether the risk of serious or significant harm to the Applicant was greater because he was a person with a genuine subjective fear of serious harm and thereby had also an additional vulnerability to threat and harm, as he was a person found by the Authority to have suffered detention, interrogation and physical abuse, and to have fear arising from these experiences and from the murders of his father, brother and brother in law.

2. There was not a claim that the applicant was at greater risk of serious or significant harm because he had a genuine subjective fear of harm and nor did such a claim clearly arise on the materials.  Particular (e) to ground 1 is not made out.

Particular 1(f)

1. The sixth particular to ground 1 is as follows:

   The Applicant was found by the Authority to have suffered detention, interrogation and physical abuse, and to have fear arising from these experiences and from the murders of his father, brother and brother in law. Nevertheless the Authority did not consider whether the Applicant’s genuine fear of harm when pursued or questioned by the authorities as happened in 2012, and as may happen again in the future, was itself serious harm or significant harm, as it was a consequence of his past and enduring physical or psychological harm, and repeated or chronic fear may be serious or significant harm.

2. There may be cases where psychological harm arising from or consisting of fear of trauma could constitute serious or significant harm.  However, that case was not put to the Authority and nor did it clearly arise on the materials.  Nor was there any medical or psychological evidence to support such a claim.

3. Particular (f) to ground 1 is not made out.

Ground 2

1. The second ground of review in the application is:

   The Authority fell into jurisdictional error in that it was unreasonable.

2. This ground contains two particulars, which will be considered in order.

Particular 2(a)

1. The first particular to ground 2 is as follows:

   The Authority was unreasonable in not finding that the conditions the Applicant may endure during even short detention, and the risk of harm to him as a person found by the Authority to have suffered detention, interrogation and physical abuse, and to have fear arising from these experiences and from the murders of his father, brother and brother in law, may be severe enough as to amount to serious or significant harm.

2. The Authority gave a complete answer to the claim that the applicant might suffer significant harm in detention in Sri Lanka. That answer was that there was not the necessary intention for the harm to constitute significant harm as defined in the Act. The applicant did not challenge that finding. Therefore, this aspect of particular (a) to ground 2 cannot succeed.

3. In relation to serious harm, the Authority said that any harm that the applicant might suffer in a period of brief remand arose from a law of general application.  That aspect of the Authority’s reasoning was not challenged and is therefore a complete answer to the issue of serious harm on remand. 

4. The Authority considered that any term of imprisonment to which the applicant might be subjected would be relatively brief and would not amount to serious harm.  In theory, that decision could have been unreasonable.  However, whether particular harm rises to the level of serious harm is a qualitative judgment that, generally, is for the Authority to determine.  It does not seem to me that the Authority’s decision on this point was so unreasonable that it would be proper for the court to overturn it.

5. Particular (a) to ground 2 is not made out.  

Particular 2(b)

1. The second particular to ground 2 is as follows:

   The Authority did not consider documents and information in the submission dated 22 March 2017and given to it by the Applicant’s representative. (CB 512-530; Decision Record [5], CB 541). The Applicant refers to and repeats particulars (c) and (d) to Ground 1 of this application.

2. For the reasons given in relation to particulars (c) and (d) of ground 1, particular (b) to ground 2 is not made out.

Ground 3

1. The third ground of review in the application is:

   The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

2. This ground contains three particulars, which will be considered in order.

Particular 3(a)

1. The first particular to ground 3 is as follows:

   The Authority erred in not finding that the conditions the Applicant may endure during even short detention, and the risk of harm to him as a person found by the Authority to have suffered detention, interrogation and physical abuse, and to have fear arising from these experiences and from the murders of his father, brother and brother in law, may be severe enough as to amount to serious or significant harm.

2. This particular to ground 3 is a clear plea for merits review.  The applicant has not explained what the precise error of law is said to be, other than suggesting that the Authority set the bar too high.  I am not persuaded that the Authority erred as alleged.

Particular 3(b)

1. The second particular to ground 3 is as follows:

   The Authority erred in interpreting and applying its obligations under part 7AA of the Migration Act 1958 in refusing to consider documents and information in the submission dated 22 March 2017 and given to it by the Applicant’s representative. (CB 512-530; Decision Record [5], CB 541). The Applicant refers to and repeats particulars (c) and (d) to Ground 1 of this application.

2. For the reasons given in relation to particulars (c) and (d) of ground 1, this particular to ground 3 is not made out.

Particular 3(c)

1. The third particular to ground 3 is as follows:

   The Authority erred in interpreting or applying the test of “a real chance of serious harm”, shown by its finding that the Applicant did not have a real chance of suffering serious harm, despite the Authority accepting that:

   ❖“ .. during the civil war his (the Applicant’s) father, brother and brother - in-law were taken and killed as claimed." (CB 543, [10])

   ❖the Applicant had suffered detention, interrogation and physical abuse; (CB 544, [11])

   ❖he had fear arising from these experiences and from the murders of his father, brother and brother in law; (CB 544, [14])

   ❖“it is plausible that armed men from one of the security agencies visited his business in July 2012 and asked for him”; (CB 544, [13])

   ❖There remain credible reports of ongoing arrests and disappearances in Sri Lanka. (CB 544-545, [14])

2. The applicant did not explain exactly how the Authority had erred in its application of the real chance test.  This aspect of ground 3 seeks impermissible merits review.  The Authority accepted the matters alleged by the applicant in particular (c) to ground 3, but also made other findings that satisfied the Authority that the applicant was not at real risk of serious harm.  The Authority did not thereby fall into jurisdictional error.

3. Particular (c) to ground 3 is not made out.

Conclusion

1. As one of the applicant’s grounds has been made out, the Authority’s decision will be set aside with costs. 

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  30 January 2019