EJI17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 710
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJI17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 710
File number: MLG 2095 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 8 August 2024 Catchwords: MIGRATION – protection visa – application for review of a decision of the Immigration Assessment Authority – whether decision unreasonable, irrational or illogical – whether Authority fell into error in its selection and use of country information – whether Authority fell into error by failing to undertake a cumulative assessment of the applicant’s claims under s 36(2)(a) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5J, 36, 46A, 473DD, 473DE Cases cited: Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submissions: 5 August 2024 Date of hearing: 5 August 2024 Place: Melbourne Solicitor for the applicant: Mr S Bandara of PLS Lawyers Counsel for the first respondent: Mr N Dour Solicitor for the respondents: Mills Oakley ORDERS
MLG 2095 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed on 28 September 2017 be dismissed.
3.The applicant pay the first respondent’s costs of the final hearing and the costs thrown away of the adjourned hearing on 16 April 2024 in the amount of $9,371.30.
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 SYMONS:
INTRODUCTION
By an application filed on 28 September 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 4 September 2017. The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority enters a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a Sri Lankan citizen of Tamil ethnicity, who arrived in Australia on 17 September 2012 and due to the circumstances of his arrival, has the status under the Migration Act 1958 (Cth) (Act) of an unauthorised maritime arrival.
On 7 January 2013 the applicant participated in an irregular maritime arrival entry interview (CB 2-25).
In November 2013, the applicant made an application for a Protection (Class XA) visa (CB 34-117). However, his status as an unauthorised maritime arrival meant that this application was invalid.
The Minister subsequently “lifted” the bar imposed by s 46A(1) of the Act and on 11 September 2015 invited the applicant to apply for the visa (CB 26-32).
On 24 March 2016 the applicant made a valid application for the visa with the assistance of a lawyer and registered migration agent (CB 119-177).
The applicant’s claims for protection were set out in a statutory declaration dated 15 November 2013 that had been provided with his invalid visa application (original statutory declaration), and a further statutory declaration dated 24 March 2016 in which the applicant made some amendments to his original statutory declaration but otherwise sought to rely on its contents (CB 161-165; 166-168). The applicant’s claims for protection included that:
(a)He is an ethnic Tamil, of Catholic faith, who was born in Mandathivu, in the Jaffna district in Sri Lanka.
(b)During the period between 1995 and 2002 he and his family were forced to flee the LTTE controlled Vanni area due to the war.
(c)Whilst he himself was not a member of the LTTE, his brother’s wife served in the LTTE from 2004-2008.
(d)His siblings and parents were forced to work for the LTTE when they were residing in Vanni.
(e)He and his family returned to Mandathivu in 2002 when things calmed down due to a ceasefire, but it was not possible to freely travel the area because the area was under the control of the Sri Lankan navy (SLN) who were suspicious of Tamils.
(f)The SLN required a pass in order to attend church and the applicant was physically assaulted by navy personnel on several occasions for not carrying a pass. Two of his relatives were abducted by members of the SLN. His uncle and another relative were shot and killed by the SLN.
(g)He and his family fled to a church 15kms away in Adaikala Matha Kovil.
(h)In or around November 2006, the applicant was abducted by the Sri Lankan army (SLA) and held at an army camp nearby. During this time, the applicant was tortured. After four days, he was transferred to the Jaffna police station and detained by police due to suspicion that he was an LTTE member.
(i)He attended court and was released on bail. He paid 10,000.00 Rupees to be released on bail. He was informed that there would be a second court hearing. He did not attend the second court hearing, but instead fled to Kurunagar (15-16kms away) where he hid at his cousin’s house for a period of 18 months.
(j)In 2009, he returned to his parents’ house in Mandathivu. Around two months later, Criminal Investigation Department (CID) officers came to the house to ask questions about the applicant having not attended his second court hearing. The applicant explained that he was fearful of being sentenced to jail and the CID officers left. The CID continued to return and questioned the applicant about his links to the LTTE and physically assaulted him.
(k)The applicant was subjected to harassment due to his vocation as a fisherman. He was physically assaulted when he did not return to shore on time and was forced to purchase cigarettes for the SLN.
(l)The applicant decided to flee Sri Lanka in August 2012 after the CID came to his house a month prior and advised him that he was a person of interest due to his failure to attend his second court date, and his issues with the SLN as a fisherman. There is a “red mark” against his name on their records.
(m)The applicant is fearful of returning to Sri Lanka because he fled Sri Lanka illegally.
On 2 November 2016, a delegate of the Minister made a decision to refuse to grant the applicant the visa (CB 215-229).
On 9 November 2016, the delegate’s decision was referred to the Authority for review (CB 230-235).
On 30 November 2016, the applicant’s legal representative sent the Authority a written submission and a statutory declaration made by the applicant on the same date (CB 237-245).
On 5 June 2017, the Authority sent a letter to the applicant in which it: (i) noted that country information suggested that conditions in Sri Lanka had improved significantly; (ii) attached a copy of the DFAT Country Information Report Sri Lanka dated 24 January 2017 (2017 DFAT Report); and (iii) invited the applicant to comment on the country information by 20 June 2017 (CB 248-256).
On 20 June 2017 and again on 21 June 2017, the applicant, with the assistance of his legal representative, responded to the Authority’s invitation by providing written submissions and country information (CB 259-273).
On 4 September 2017, the Authority affirmed the delegate’s decision and produced a set of written reasons (Reasons) (CB 276-295).
THE DECISION OF THE AUTHORITY
The Authority set out, between [2] and [8] of its Reasons, the information before it. This information included:
·submissions received by the Authority on 20 November 2016.
·Further information including a statutory declaration dated 30 November 2016.
·A copy of a police notice dated 6 December 2006, along with an English translation dated 24 November 2016.
·The applicant’s submissions in response to the invitation to comment on the 2017 DFAT Report.
The Authority noted at [4] that the statutory declaration and police notice were new information before it. The Authority was not satisfied that there were exceptional circumstances in which to warrant it considering the statutory declaration under s 473DD of the Act. However, the Authority accepted that the applicant’s parents had only found the police notice following the delegate’s decision and found that there were sufficient exceptional circumstances to consider the police notice and its English translation (Reasons, [5]). The Authority was also satisfied that the applicant’s response to its request for comment could not have been provided before the delegate’s decision and there were exceptional circumstances to justify considering it (Reasons, [8]).
The Authority identified the applicant’s claims in a manner that is not challenged in this proceeding (Reasons, [9], [11]-[19]). The Authority accepted that the applicant is a national of Sri Lanka from Jaffna District, Northern Province and that he is Tamil and Catholic (Reasons, [10]).
However, the Authority found that having considered the applicant’s evidence overall and having taken into account difficulties that might impair an applicant for protection’s capacity to recall and communicate information, it took issue with the truthfulness of the applicant’s evidence and found “serious concerns” about his credibility (Reasons, [22], [28]). This conclusion reflected observations about inconsistencies in the detail of the account provided by the applicant as between his SHEV interview and SHEV application and the following considerations:
First, the Authority noted that the applicant had difficulties recounting specific information, such as the name of the SLA camp where he was detained, or the specific offence which he was charged with, nothing that this vagueness and inability to recall specific details was inconsistent with “someone recounting an important event they have actually lived through” (Reasons, [23]).
Second, the applicant claimed that while he was in hiding and living with his cousin for a period of 18 months, the Sri Lankan authorities did not come to the cousin’s village to do round ups or to check houses. The Authority found this claim to be implausible in circumstances where the cousin lived in a highly militarised area and the period of the applicant’s stay coincided with a period of intensification in the war (Reasons, [24]).
Third, the Authority considered the applicant’s claims about his interactions with the CID from 2009 until the time that he left Sri Lanka to be implausible. The Authority stated at [25]:
…I do not consider it plausible that, if the applicant was on bail and had failed to appear in court as required for his second hearing, the CID would interrogate him on a monthly to three monthly basis, including about his failure to attend the court hearing, but take no action to arrest him, revoke his bail or otherwise require him to appear again in court. Additionally, I do not consider it plausible, that the CID would, for no apparent reason and after almost three years of questioning warn the applicant he had a ‘red mark’ against his name in their files.
Fourth, the Authority considered that discrepancies in the date assigned by the applicant to an incident that had involved the CID assaulting his younger brother were significant and suggested that the applicant was recalling details memorised from his written statement rather than an actual event (Reasons, [27]).
Fifth, the Authority acknowledged that the applicant had produced documents in support of his claims about his arrest, detention, and court attendance in 2006 and the CID questioning and injuring his brother but after identifying a number of inconsistencies and inadequacies in the documents and noting the prevalence of document fraud in Sri Lanka, decided not to attach any weight to them (Reasons, [27]).
Having regard to these matters the Authority did not accept the applicant’s claim that after his detention in 2006 by the SLA following a round-up he was handed over to the police, taken to court, released on bail and given a subsequent hearing date which he failed to attend and did not accept that the CID questioned the applicant between 2009 and when he left Sri Lanka in 2012 or warned him that there was a “red mark” against his name. The Authority did not accept that the CID enquired about the applicant’s whereabouts after he left Sri Lanka or that the CID injured his younger brother in September 2015 (Reasons, [28]).
Based on country information and other aspects of the applicant’s evidence the Authority did however accept the following: (Reasons, [28])
·The applicant lived in LTTE controlled areas in the Vanni for a time during the war and that he and his family members were occasionally made to build bunkers.
·Except for his sister-in-law who was in the LTTE from approximately 2004-2008, neither the applicant nor his family were members of the LTTE.
·Sometimes the applicant couldn’t attend church because he didn’t have a pass and sometimes the SLN beat the applicant when he was in line for a church pass.
·A friend of the applicant’s was injured in the ear by the SLN and two of the applicant’s relatives were taken during searches.
·The applicant’s uncle and another relative were killed by the SLN who shot a number of Tamils after a LTTE attack.
·The applicant and his family were displaced to a refugee camp in a church in 2006 and the applicant was arrested in a round up by the SLA around November 2006 and interrogated and tortured before being released four days later.
·After the applicant’s release he lived at his cousin’s before he moved back to the family home in 2009.
·While fishing from 2005 to 2006 and again from 2007 to 2012, the applicant was required to have a SLN pass to go fishing, that he had to show the pass to the SLN coming and going fishing, that he was beaten several times when he arrived back late from fishing and that the SLN sometimes made him do favours like buying them cigarettes and occasionally stopped his pass if he refused to do so.
The Authority referred extensively to country information, including the 2017 DFAT Report, which indicated that there had been a number of significant changes in the time since the applicant left Sri Lanka (Reasons, [35]) including changes that affected the Tamil population.
The Authority acknowledged that the applicant had historically been subject to a level of day-to-day harassment while he was fishing and based on his Tamil ethnicity but found that the country information indicated that the fishing pass system was no longer in place and as such the basis for the applicant’s past unfavourable treatment would be removed. The Authority also noted the absence of any other country information that suggested there was recent systemic targeting or persecution of Tamil fishermen and was not satisfied that the applicant would face a real chance of harm as a Tamil fisherman if he returned to Sri Lanka (Reasons, [41]).
The Authority referred to the UN High Commissioner for Refugees’ 2012 Eligibility Guidelines for Sri Lanka (UNHCR Guidelines) and the advice that originating from an area that was previously controlled by the LTTE did not in itself give rise to a need for international refugee protection. The Authority, by reference to the UNHCR Guidelines, identified the category of persons who might have this status (Reasons, [42]).
The Authority repeated its positive findings (referred to at [24] above) but found, having regard to the UNHCR Guidelines and other country information before it, that it did not consider the applicant to be at risk of harm for any reason of any links to the LTTE, or any imputed political opinion. This finding was made for the following reasons: (Reasons, [48]-[50])
First, on the evidence, residing in a LTTE controlled area did not itself give rise to a need for protection, including where this involved being required to do forced labour and especially where neither the applicant nor his family members were members of the LTTE.
Second, although the applicant was interrogated and tortured about possible LTTE involvement in 2006 after his arrest in a round up, on the Authority’s findings, he was later released without charge.
Third, on the Authority’s findings, the applicant was not at any other time after his release in late 2006 ever arrested, questioned, mistreated, or sought by the Sri Lankan authorities or otherwise of adverse interest to the Sri Lankan authorities, save for his involvement with the SLN in relation to the fishing pass system.
Fourth, the applicant did not have a profile that country information suggests he is at risk of harm from the Sri Lankan authorities, now or in the foreseeable future, for any links to the LTTE or for any imputed political views.
The Authority acknowledged the applicant’s response to the 2017 DFAT Report and his reference to country information that suggested the continuation of human rights violations but found this to be broadly consistent with the 2017 DFAT Report which in other respects generally assessed the situation in Sri Lanka to have improved (Reasons, [51]).
The Authority was satisfied that the applicant would not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, for any imputed political opinion, and/or as a young Tamil fisherman from the north, if returned to Sri Lanka now or in the reasonably foreseeable future (Reasons, [52]).
The Authority was likewise satisfied that there was not a real chance that the applicant would experience harm as a Catholic, if returned to Sri Lanka, now or in the reasonably foreseeable future. This finding reflected the absence of any claim by the applicant that he had experienced harm in the past on account of his religion, or that his family had experienced any harm as Christians in Sri Lanka, as well as country information which indicated that there were no further reports of the government supporting anti-religious groups (Reasons, [57]).
The Authority considered whether the applicant would satisfy s 36(2)(a) by reason of his status as a failed asylum seeker who had departed Sri Lanka illegally.
The Authority referred to the entry and exit provisions for Sri Lanka including as regulated by the Immigrants and Emigrants Act 1949 (IE Act) and noted the assessment by DFAT that the risk of mistreatment or torture for the majority of returnees, including those suspected of offences under the IE Act, to be low and continuing to reduce. The Authority did not accept that the applicant would be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka, including because he did not have an adverse profile with authorities (Reasons, [58]-[64]).
The Authority accepted that the applicant if returned to Sri Lanka would face action under the IE Act which would likely involve his detention and questioning at the airport (up to 24 hours) before being taken by the police to the nearest Magistrates Court (Reasons, [65]).
The Authority found that the applicant may face a fine for breaching the IE Act and based on some different contingencies, face a short period of being held in prison. The Authority acknowledged the general poor prison conditions but did not consider a few days in detention would constitute the necessary level of threat to the applicant’s life or liberty, or be significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm for the applicant. It arrived at the same conclusion with respect to any questioning of the applicant by the authorities or surety or fine (Reasons, [66]-[70]).
The Authority was not satisfied that the applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future (Reasons, [72]).
The Authority found that the applicant did not meet s 36(2)(a).
As far as s 36(2)(aa) was concerned, the Authority referred to its findings made in the refugee context and the assimilation of the “real chance” and “real risk” standard and recorded its satisfaction that there was no real risk of significant harm to the applicant if he was to return to Sri Lanka based on his LTTE links, for any imputed political opinion, as a young Tamil fisherman from the north, as a Catholic, as a returned Tamil asylum seeker from Australia or for a combination of these (Reasons, [77]).
The Authority acknowledged that the applicant faced possible action under the IE Act for his illegal departure and in this context referred again to the possibility that the applicant might be briefly detained in poor prison conditions. The Authority was not satisfied, having regard to country information that identified a lack of resources as the primary reason for adverse conditions, that there was an intention to inflict pain or suffering, severe pain or suffering or extreme humiliation in any brief detention or in any other action taken under the IE Act. The Authority was not satisfied that any of these actions constituted significant harm as defined under s 36(2A) of the Act (Reasons, [78]-[80]).
The Authority found that the applicant did not meet s 36(2)(aa) of the Act.
PROCEEDINGS IN THIS COURT
On 30 May 2018, a Registrar made procedural orders including that the applicant file and serve at least 28 days before the final hearing, any amended application with proper particulars of the grounds of the application, any supplementary court book (if any) and written submissions.
The application was later set down for final hearing to occur on 16 April 2024.
Consistent with the procedural orders, the Minister, on 3 April 2024, filed written submissions. The applicant did not produce any material responsive to these orders.
Hearing on 16 April 2024
The application came before me for final hearing on 16 April 2024. The applicant was self-represented, and was assisted by an interpreter in the Tamil and English languages. Mr Dour of counsel appeared for the Minister.
Upon commencement of the hearing, I inquired whether the applicant was able to proceed with the hearing. The applicant asked me to adjourn the hearing to a later date to allow him time to obtain legal representation, noting that he had been unable to do so thus far. He stated that, due to his ill-health, he is unable to represent himself in these proceedings.
This application was not entirely a surprise as the applicant had foreshadowed, in an email sent to the Minister’s lawyers (Mills Oakley) on 13 April 2024 and subsequently provided by Mills Oakley to the Court, that he needed more time to prepare for the hearing, citing mental health challenges.
I inquired whether the applicant had made any attempts to obtain a lawyer prior to the hearing date. He informed me that he had, and during these attempts, was advised to request an adjournment of today’s hearing. The applicant was unable to recall on which dates he made these inquiries, noting that his sickness often impairs his memory.
I asked the applicant how much time he would need to obtain a lawyer and prepare for hearing. The applicant told the Court that two months would be sufficient time to achieve this.
The Minister opposed the adjournment request on the basis that the applicant had failed to comply with any procedural dates thus far, and he had failed to provide evidence of his efforts to obtain legal representation.
I granted the adjournment, partly due to the applicant having provided a medical certificate which supported his claim that his memory was impaired by his ill-health. I also noted that the final hearing of this matter had only been listed in March 2024, therefore it was not altogether surprising that the applicant had not been able to obtain representation during the subsequent, relatively brief, period.
Apart from adjourning the final hearing to 5 August 2024 I made orders that would facilitate the filing by the applicant of an amended application and written submissions and any further written submissions by the Minister.
On around 19 June 2024 the applicant appointed a lawyer and on 2 July 2024 the applicant’s lawyer filed written submissions on the applicant’s behalf. The applicant did not file an amended application. On 16 July 2024 the Minister filed further (but consolidated) written submissions.
Although the applicant’s submissions refer to and set out the grounds of review identified in his application filed on 28 September 2017, at hearing the applicant’s lawyer informed the Court that the applicant no longer pressed ground three. The remaining two grounds are as follows:
1.The Immigration Assessment Authority fell into jurisdictional error in that it acted unreasonably, irrationally or without logically probative evidence. The authority accepted I was targeted by the CID due to my association with the LTTE, my sister in law was involved with the LTTE and I was still sought by the authorities for my failure to attend court whilst on bail. The Authority's finding that I will not face a real chance of persecution was so illogical and irrational reasoning which was not supported by evidence. (Reference to Minister for Immigration and Citizenship -V- SZMDS {2010} HCA 16)
2.The Immigration Assessment Authority did not assess my claim cumulatively being a Tamil of Christian from North of Sri Lanka and his familial connection with LTTE (political opinion contrary to the government of Sri Lanka) by not doing so fell in to jurisdictional error.
GROUND ONE
The premise of the applicant’s ground one is that because the Authority accepted certain elements of his case and claims it was unreasonable for it not to go on to find that he had a real chance of persecution based on his association with the LTTE.
In this respect, the applicant in his written submissions, accurately records some of the positive findings made by the Authority insofar as they concern his past treatment in Sri Lanka by the SLA and the SLN (refer applicant’s written submissions at [9]-[13]). This stands in contrast to the grounds of application which misstate important findings of the Authority, including that the Authority accepted the applicant was targeted by the CID due to his association with the LTTE and that he was sought by the authorities for his failure to attend court whilst on bail. As I have recorded earlier (at [23] and [28]) the Authority was not satisfied that the applicant had any links, imputed or otherwise, to the LTTE and rejected the applicant’s claim to have been taken to court, released on bail, and given a subsequent hearing date.
The applicant’s written submissions also refer to passages from the 2017 DFAT Report that were identified as relevant by the Authority in its invitation to comment sent to the applicant on 6 June 2017. These passages (reproduced in their entirety but identifying the parts emphasised by the applicant) are as follows:
2.39 The security situation in the north and east has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life. However, military and security forces maintain a significant presence in the Northern Province, including in Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna Districts. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. In September 2016, DFAT observed a low-level, visible military presence in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula (also known as ‘High Security Zones’) or the smaller surrounding military camps. The High Security Zones occupy fertile land and are well-established, with permanent structures and well-tended agricultural land. The Government has begun reducing High Security Zones in the Northern Province and to date, over 1,000 acres of land have been released in Jaffna (not just in the High Security Zones). Military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east.
…
4.2According to the US Department of State, there were no verified reports of extrajudicial killings in 2015. The most recent LTTE-related extra-judicial killing was in April 2014 when the Sri Lankan military shot and killed three Tamil men with alleged connections to the LTTE during a ‘cordon and search’ operation in Vavuniya District. Sri Lankan authorities reportedly retrieved arms, ammunition and explosives from those killed. DFAT is not aware of any other reported LTTE-related extra-judicial killings since this incident.
…
4.12A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but not reserved to this group).
4.13 These reports include:
•International Trust and Justice Project’s (ITJP) 2016 report, Silenced: Survivors of torture and sexual violence in 2015
•ITJP’s 2015 report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015
•Freedom from Torture’s (FFT) 2015 report, Tainted Peace: Torture in Sri Lanka since May 2009
•Amnesty International’s 2012 report, Locked Away: Sri Lanka’s Security Detainees. The 2016 ITJP report cited 20 cases of torture in 2015. FFT’s report cited eight torture cases in 2015. DFAT notes that verification of the evidence presented in these reports is complicated by the fact that many allegations are made anonymously, often to third parties, including by individuals who are outside Sri Lanka, and in some cases individuals who are in the process of seeking asylum. However, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and its immediate aftermath.
…
4.15DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
…
5.17Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Enry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act)…Under sections 34 and 45(1)(b) of the I&E Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and most cases result in the issuance of a fine and not imprisonment.
Against this background, the applicant submits that having accepted that the applicant was harassed, and his relatives taken in search of operations for their connections with LTTE, the Authority did not resolve the claim and that certain (unidentified) findings made by the Authority were illogical, irrational, and not supported by evidence (referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611).
When asked to expand on this argument at hearing, the applicant’s lawyer focused on the Authority’s findings at Reasons, [41], by which the Authority had accepted that the applicant, by virtue of the pass system then in place, had been subjected to a level of day to day harassment while undertaking fishing that had impacted on his capacity to earn a living and resulted in him being beaten several times. The complaint was that having made these findings, it was unreasonable and irrational for the Authority to later conclude that the applicant did not face a real chance of persecution from the Sri Lankan authorities, including because of any real or perceived links to the LTTE or as a young Tamil fisherman from the north.
The applicant’s lawyer submitted that the Authority’s resolution of his claim was inconsistent with paragraphs [20] and [21] of the Reasons. These paragraphs state:
Country information confirms that all persons living in areas controlled by the LTTE necessarily had contact with the LTTE and its civil administration in their daily lives. The LTTE used some forced labour for work including building bunkers. The UNHCR confirms that post-war arbitrary detentions were widely reported, as well as reports of detainees being interrogated, with the detainees usually civilians suspected of LTTE links, particularly in the north and east. DFAT assesses that there are credible reports of torture carried out by Sri Lankan security forces both during the war and in its aftermath. Many Tamils, in the north and east in particular, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government.
Country information confirms that, in areas including Jaffna, fishermen needed special permits to access coastal waters and had to submit documentation daily when going out on the water. These passes were only required from Tamil fisherman and other restrictions in relation to fishing also applied. The main St Peter’s Church in Mandathivu was subject to access restrictions. In 2010 there were still cordon and search operations in Jaffna, but at a reduced level compared to the period from 2006 to 2009 and they were no longer systematic.
The applicant also made the submission that the Authority’s use of country information was selective. He submitted that this was evident from the invitation to comment on the 2017 DFAT Report which identified five categories of information that were described as “the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection” (CB 248). The applicant was also critical of what he submitted was the failure of the Authority to consider the response he provided to the Authority about the 2017 DFAT Report.
RESOLUTION OF GROUND ONE
I am not persuaded that the Authority’s decision contained findings that were unreasonable, illogical, or irrational or that the decision as to its outcome is liable to be set aside for unreasonableness.
In essence, the applicant’s complaint crystallised as a merits-based attack on the Authority’s rejection of his claim to be of ongoing interest to Sri Lankan authorities. The narrative being that because the Authority had accepted that historically the applicant had been subjected to harassment as the result of a now defunct fishing pass system and because the country information before the Authority, including the 2017 DFAT Report, was not universally indicative of improved political and security conditions, the ultimate rejection of the applicant’s claim must have been the product of error.
The applicant did not however identify any error in the reasoning adopted by the Authority concerning his interaction with authorities which coalesced in it rejecting the applicant’s significant claims to have come to the attention of the SLA or the CID after his detention in 2006. Neither did the applicant identify any error in the approach taken by the Authority to the application of the UNHCR Guidelines which, when operating on the factual findings already recorded by the Authority, produced the result that the applicant did not have a profile that would bring him to the attention of Sri Lankan authorities.
Having reviewed the reasoning of the Authority I am unable to discern any error in the approach taken to its consideration of the applicant’s factual claims including through its application of country information. The Authority accepted substantial aspects of the applicant’s claims where they were adjudged to be coherent, plausible, and consistent with country information. The Authority rejected other aspects of the applicant’s claims based on the identification of inconsistencies, significant changes, and the Authority’s view (informed in part by country information) that the accounts were not plausible. The pathway of reasoning was intelligible and logical and supported by material before the Authority.
Likewise, the Authority was alive to the reality that the country information was nuanced and included contemporary reports of human rights violations. This is clear from Reasons, [51], where the Authority said:
In his response to the IAA, the applicant highlighted country information that suggests a number of serious human rights violations continue to occur in Sri Lanka, including the use of torture. I consider this country information to be broadly consistent with DFAT’s 2017 report which does not suggest that such incidents do not occur, but generally assesses the situation in these areas as improved as discussed above.
This passage also makes clear that the Authority did take account of the applicant’s submission about the 2017 DFAT Report and that it understood the import of what had been communicated in it.
Finally, I do not consider there to be any merit in the applicant’s argument that the invitation to comment involved prejudgment on the part of the Authority or by the identification of topics for comment, betrayed a selective approach to country information by the Authority.
While the Authority was not obliged to invite the applicant to comment on the new information in the form of the 2017 DFAT Report, the fact that it did and adopted the process (and language) referred to in s 473DE(1) of the Act is not a matter that warrants criticism. The Authority organised the information into topics that reflected the key observations extrapolated from the 2017 DFAT Report and gave the applicant an opportunity to respond to these matters. The information extracted for the applicant’s benefit included each of the paragraphs now emphasised by the applicant in these proceedings.
Ground one is dismissed.
GROUND TWO
By this ground the applicant submits that when considering his claims cumulatively, the Authority excluded from consideration his and his family’s accepted history of having a connection to the LTTE.
While the factual premise of this submission is not on all fours with the findings recorded by the Authority, I understand the applicant’s point to be that the Authority failed to undertake a cumulative assessment of his claims under s 36(2)(a) of the Act.
The Minister accepts that the Authority made no express cumulative findings in respect of the applicant’s claims under s 36(2)(a) but submits that its reasons were comprehensive and recorded findings in respect of each of the applicant’s individual claims such that he would not face serious harm now or in the reasonably foreseeable future.
The Ministers submits that in these circumstances the Authority was not obliged to undertake a cumulative assessment and cites in support of this submission the decision of Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32] which states:
Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error).
I accept the submission of the Minister. In this case, there was no residual aspect of the applicant’s claim to fear harm arising from his alleged connection to the LTTE that required consideration as part of a cumulative assessment. The Authority emphatically rejected the applicant’s claim that his past interactions with the LTTE would be productive of attention and/or problems for him in the reasonably foreseeable future.
Ground two is dismissed.
ORDERS
The applicant has not established jurisdictional error in the decision of the Authority. It follows that his application seeking judicial review should be dismissed and an order made that the applicant pay the Minister’s costs in the Scale amount for a final hearing as well as the amount of $1,000 for the Minister’s costs thrown away from the adjourned hearing date.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 8 August 2024
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