EKI17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 837
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKI17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 837
File number: SYG 3035 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 5 September 2024 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA failed to consider one of the applicant’s protection claims – whether the IAA misunderstood the well-founded fear test – whether the IAA failed to consider a relevant issue – whether the IAA failed to consider information about the applicant’s brother’s disappearance – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 5J, 36, 473CB, 473DA, 473DC, 473GA, 473GB & 476 and Division 3 of Part 7AA Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 8 April 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 3035 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Sri Lanka (Court Book (“CB”) 3, 42 & 167). He arrived in Australia in November 2012 as an unauthorised maritime arrival (CB 167).
On 29 July 2016, the applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”) (CB 29-71). With his visa application, the applicant provided a completed “Form 956 – Advice by a migration agent/exempt person of providing immigration assistance” document appointing a registered migration agent to assist him with his visa application (the “representative”) (CB 72-75).
With his visa application, the applicant also provided a statement (signed and witnessed on 7 July 2016) detailing his protection claims (CB 79-85).
That signed statement relevantly provided as follows (CB 81-83):
(a)in 1990, the applicant’s house was destroyed during conflicts between the Sri Lankan Army (the “SLA”) and the Liberation Tigers of Tamil Eelam (the “LTTE”);
(b)on 23 July 1993, the applicant was arrested (within a week of arriving in Colombo) and was detained until 5 October 1993. During that time, the applicant was constantly questioned, interrogated and tortured. He was later “produced to the court and released without charge”;
(c)the applicant then spent “a few years” in Jaffna where he assisted his uncle with his farm;
(d)the applicant then went to Batticaloa where worked at his father’s stores;
(e)the applicant was later displaced as a result of the conflict between the SLA and the LTTE and was placed in a detention centre from April to October 2007. During that time, he feared being “taken for further interrogation”;
(f)the applicant escaped from the detention centre and went to Iraq for work;
(g)the applicant’s brother was abducted in January 2008 and remains missing;
(h)the applicant fears that his brother is dead;
(i)there was a shooting in the applicant’s local area (while the applicant was in Iraq) and the applicant’s family was “taken in for questioning” by the Karuna Group. His wife was threatened with a gun in the presence of his daughter;
(j)in March 2012, members of the Sri Lankan authorities took the applicant’s passport; and
(k)after the passport incident, officers of the Criminal Investigation Department (the “CID”) came to the applicant’s home looking for him (on three separate occasions) and questioned his mother about his whereabouts.
On 23 January 2017, the then Department of Immigration and Border Protection (the “Department”) invited the applicant to attend an interview to discuss his visa application and protection claims (the “SHEV interview”) on 6 February 2017 (CB 107-109).
On 27 January 2017, the applicant’s representative confirmed receipt of the invitation and confirmed that the applicant would attend the SHEV interview (on 6 February 2017) with his representative (CB 110).
On 6 February 2017, the applicant attended the SHEV interview.
On 14 February 2017, the applicant’s representative provided post-interview submissions to the Department on behalf of the applicant (via email) (CB 117-149).
At the SHEV interview and in the post-interview submissions, the applicant detailed further protection claims, as follows:
(a)the applicant owned and operated his father’s grocery story (with his three brothers) from the time of his father’s death in 2000 until 2007. Between 1997 and 2007, that store was visited daily by LTTE members of all ranks. Further, when the applicant was working, he would voluntarily provide goods to those members (totalling between 5,000 and 10,000 rupee – being approximately one third of his daily earnings). The applicant also claimed to know many of the LTTE members by name;
(b)the applicant’s brother was forcibly taken by the SLA after the SLA found weapons in the family store and accused the applicant’s brother of hiding them there. The applicant also claimed that the weapons were “planted” in the shop by Sri Lankan authorities; and
(c)the applicant claimed that he had been arrested by the SLA in 1995 but he was not harmed. However, he later appeared to retract that claim, stating instead that the SLA came in 1995 to question people but did nothing to harm them.
On 24 February 2017, the Department invited the applicant (through his representative) to comment on adverse information (CB 150-157). Relevantly, the Department explained that it had a “reasonable suspicion” that a “detention attestation certificate purportedly issued by the UNHCR in Colombo, Sri Lanka” appeared to be a “bogus document”. The applicant was given 14 days within which to comment (CB 151).
On 9 March 2017, the applicant’s representative responded to the invitation to comment (by letter sent via email) (CB 158-163). In that response, the applicant’s representative explained that the applicant’s mother had received the document by post. Further, it was explained that the applicant’s mother had made a complaint at the UNHCR office in Batticaloa in 2008. When no further information was forthcoming, the applicant’s mother made a complaint to the Sri Lankan Human Rights Commission and “sometime after” she “received the document in question by post”. The applicant’s representative also stated that the applicant had questioned his mother about the exact date she had received the document but, due to her age, she was unable to recall the date. The applicant’s mother sent the document to the applicant in 2016 (CB 160). Further, the applicant’s representative explained that the applicant “did not provide the document … with an intent to mislead the Department” (CB 161).
On 16 March 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 167-182). The delegate accepted that the applicant had provided a “reasonable explanation as to why he [had] provided a bogus document” but found that the applicant was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”) (CB 170 & 176-177).
On 21 March 2017, the matter was referred to the Immigration Assessment Authority (the “IAA”) under Part 7AA of the Act (CB 187).
On 7 September 2017, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (CB 203-221).
On 3 October 2017, the applicant sought judicial review of the IAA’s decision by this Court.
THE IAA’S DECISION
The application before this Court is brought pursuant s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act arguably restricts what this Court can and cannot do when determining whether there is any jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time that decision was made.
The IAA can, however, obtain “new information”, which is defined as information that was not before the delegate and which the IAA considers “may be relevant”: s 473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
The Court notes that no “new information” arose in relation to this matter and it is not suggested by the applicant that the IAA should have sought any further information.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with s 473GA and s 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in this matter is 19 pages long and spans 60 paragraphs (CB 203-221). This includes four pages containing extracts of relevant legislative provisions (CB 218-221).
The IAA accepted that the applicant was a Hindu Tamil from Sri Lanka and identified that the applicant’s receiving country was Sri Lanka. The IAA noted that the applicant had lodged the visa application on 29 July 2016. The IAA also noted that the visa was refused by a delegate of the Minister on 16 March 2017 (at [1] & [6]).
The IAA confirmed that it had had regard to the material referred to it by the Secretary pursuant to s 473CB of the Act and provided a comprehensive summary of the applicant’s protection claims (at [2]-[3]).
The IAA accepted that the applicant’s family home had been destroyed during fighting in 1990 and that the applicant was detained for three months in 1993, being subjected to torture before being released without charge. The IAA also accepted that, after his release, the applicant had returned to Jaffna to work for his uncle until going back to Batticaloa in 1997 to work at his father’s shop. The IAA accepted as plausible that members of the SLA had visited the applicant’s aunt’s home and asked questions but did not accept the applicant’s claim (made at his SHEV interview) that he had been arrested by the SLA in 1995 (at [7]-[10]).
The IAA outlined a number of credibility concerns with the applicant’s evidence in relation to his interactions with members of the LTTE whilst working at his father’s grocery store. Relevantly, the IAA explained that the applicant’s claim had “evolved over time” and that the applicant’s evidence was “extremely vague” and his responses were “evasive”. The IAA accepted that the applicant had worked in the family shop for ten years and that it was plausible that the authorities might be suspicious of those who had not been recruited by the LTTE. However, the IAA noted that the applicant was unable to provide evidence of a single interaction with authorities or any other group in the ten-year period he worked at his father’s shop. The IAA was thus not satisfied that the authorities were interested in the applicant for any reason in connection with the LTTE (at [11]-[18]).
The IAA accepted that the applicant and his family were displaced in 2007 but did not accept that the applicant lived in a detention centre for six months. The IAA accepted that the applicant and his family voluntarily went to an internally displaced persons (“IDP”) camp from April to October 2007 and accepted as plausible that there were interrogations during that time. The IAA found that the applicant was not interrogated during his time at the IDP camp. The IAA also noted that the applicant claimed that his family had been threatened by the Karuna Group but did not accept that the applicant’s family had been taken for questioning or that his wife had been threatened by having a gun placed in her mouth (at [19]-[20]).
The IAA accepted that the applicant’s brother was abducted in January 2008, remains missing and that his family fears he is dead. However, the IAA was not satisfied that the applicant’s brother’s disappearance was connected with the family shop, that the applicant’s brother was a person of adverse interest to the authorities or that his disappearance had any consequence for the applicant (other than the personal tragedy of losing his brother) (at [21]-[24]).
The IAA noted that the applicant was able to depart and re-enter Sri Lanka in 2009 (from Iraq) and made two trips in 2010 (to Dubai and to India). The IAA raised concerns about inconsistencies in the applicant’s evidence and did not accept the applicant’s claim to have had continuous issues with the CID (after returning from Iraq). The IAA did not find it plausible that the CID would “keep checking” on the applicant by enquiring of him in the neighbourhood (rather than asking questions directly of the applicant). The IAA also did not accept that the CID would confiscate the applicant’s passport or that the applicant was a person of interest to the CID or to the Sri Lankan authorities (at [25]-[31]).
The IAA accepted that the applicant’s family store sold goods and groceries to members of the LTTE but was not satisfied that the applicant ever came to the attention of the authorities or that he would be imputed as an LTTE supporter for that reason. On the basis of country information before it, the IAA found that the applicant would not be harmed in Sri Lanka because of his Tamil ethnicity or any actual or imputed connection to the LTTE, his past detention, his brother’s disappearance, his origins from an area previously under LTTE control or any combination of those circumstances. The IAA was also not satisfied that the applicant would be at risk of harm from any other group (including the Karuna Group) if he were returned to Sri Lanka (at [32]-[39]).
The IAA considered county information in relation to whether the applicant would be harmed upon his return to Sri Lanka by reason of his illegal departure from that country or his status as a failed asylum seeker and was not satisfied that the applicant faced a real chance of serious harm for those reasons (at [40]-[51]).
Having considered (together) the applicant’s claims which had been accepted, the IAA was not satisfied that there was a real chance that the applicant would be seriously harmed upon his return to Sir Lanka, now or in the reasonably foreseeable future. The IAA therefore found that the applicant did not meet the refugee criterion set out in s 36(2)(a) of the Act. The IAA also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm (at [53]-[60]).
The IAA ultimately affirmed the delegate’s decision refusing to grant the applicant a visa.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 3 October 2017 contains three grounds of review, as follows (without alteration):
1.IAA made a jurisdictional error as it did not consider a crucial claim of the Applicant.
Particulars
Applicant will be imputed with LTTE profile as authorities suspected that the shop he was running once belonged to the LTTE.
Applicant will be imputed with the LTTE profile.
2.IAA misunderstood the well-founded fear test.
Particulars
Above particulars in ground 1 apply.
3.IAA did not consider a relevant issue.
Particulars
IAA did not consider the country information relevant to the Applicant namely the Sri Lankan authorities still persecute those suspected of LTTE connections.
On 15 November 2017, procedural orders were made by Registrar Cho in the then Federal Circuit Court of Australia giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions.
On 15 September 2023, the matter was listed for a directions hearing before this Court. The applicant appeared at that directions hearing (by telephone) without legal representation but with the assistance of a Tamil interpreter.
Noting that the applicant was not represented and that it had been some time since the matter had been filed, the Court explained to the applicant that his matter would soon be listed for a final hearing, that this Court could only turn its attention to the issue of jurisdictional error in the IAA’s decision and that the Court would do so at the final hearing.
The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it could not undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, it was emphasised that this Court cannot grant the applicant the visa that the applicant now seeks (even if the Court strongly disagrees with the IAA’s ultimate findings). Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
The applicant was advised that his matter would be listed for a final hearing before this Court on 8 April 2024. He was given a further opportunity to file any amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared at the final hearing before this Court via video link on 8 April 2024. He was assisted at that hearing by a Tamil interpreter.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 3 October 2017, a Court Book numbering 221 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 11 March 2024.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court reminded the applicant of the categories of jurisdictional error (previously explained to him at the directions hearing on 15 September 2023 and set out above) and gave him an opportunity to outline orally what he thought the IAA “did wrong” in relation to his matter.
The applicant told the Court that the error that the IAA made had to do with the fact that the applicant owned a shop and that he had said in his statement of claims that the shop was in an LTTE controlled area so everyone who came to the shop was a member of the LTTE. The applicant said that he believed that the IAA did not take that into consideration.
The applicant also told the Court that the CID were investigating him and that he went to the CID camp but was in fear of being searched by the CID and was in hiding all the time and “that is why” he decided to leave Sri Lanka.
The applicant also stressed that although the IAA viewed his shop or store as an ordinary store, behind his shop was the location where all the LTTE activities took place and many of the combatants or the members of the LTTE came there.
The applicant also asked why his brother would have been taken (never to be seen again). The applicant stressed that the LTTE came to the shop and took his brother and killed him and the applicant believes that they are after him too.
The applicant’s oral submissions, to the extent that they raise any issue of jurisdictional error on the part of the IAA, will be addressed below.
CONSIDERATION
Grounds of review
Ground one
As outlined above, ground one provides:
1.IAA made a jurisdictional error as it did not consider a crucial claim of the Applicant.
Particulars
Applicant will be imputed with LTTE profile as authorities suspected that the shop he was running once belonged to the LTTE.
Applicant will be imputed with the LTTE profile.
By ground one, the applicant claims that the IAA failed to consider that the applicant would be imputed with an LTTE profile on the basis that he was running his family store which was linked to or belonged to the LTTE.
This ground fails on a factual level.
The IAA considered “the shop” and “interactions with the LTTE” in detail (at [11]-[18]). In particular, the IAA:
(a)had credibility concerns with the applicant’s evidence in relation to this claim, noting that the applicant’s evidence had evolved over time (at [11]);
(b)noted that the applicant provided further information about the family store at the SHEV interview, including that the shop was in an LTTE controlled area and members of the LTTE (of all levels) would buy goods from him and the applicant knew them all by name (at [12]);
(c)explained that the applicant also raised a new claim that he voluntarily gave the LTTE approximately one third of his daily earnings from the store so that he and his brothers would escape forced recruitment to the LTTE but the government would suspect they did so because they were LTTE supporters (at [13]);
(d)explained that the applicant’s representative submitted that the applicant was afraid of disclosing information he feared would impute him with having been associated with the LTTE because he was afraid Australian authorities would detain him. The submission from the applicant’s representative also claimed that the applicant’s credibility was enhanced by the fact that he lived in an LTTE controlled area for ten years without being recruited but this would be viewed with suspicion by authorities because the LTTE recruitment policy suggests that he was exempt from recruitment because of the extensive support he provided to the LTTE (at [14]);
(e)found the applicant’s evidence at the SHEV interview regarding his knowledge of LTTE members to be extremely vague (at [15]);
(f)did not accept the reasons given for the applicant’s late disclosure of claims concerning the shop adequately explained his failure to mention that he supported the LTTE by giving them a third of the shop’s daily profits;
(g)noted that the applicant was unable to provide evidence of a single interaction with authorities or any other group in the ten year period he worked in the family shop (at [16]);
(h)accepted that the applicant worked in the family shop for ten years from 1997 and that the applicant’s family store sold goods and groceries to members of the LTTE;
(i)accepted that it was plausible that the applicant may have “become familiar with some LTTE members” and may have known some of their names (at [17]); and
(j)explained that, given the concerns with the applicant’s evidence, the late raising of claims regarding the shop and the fact that the authorities had shown no interest in the applicant in the ten year period he worked in the shop, the IAA was not satisfied that the applicant was of any adverse interest to the Sri Lankan authorities (at [18], [31] & [38]).
Overall, the IAA considered this claim in some detail and concluded that the authorities would not be interested in the applicant because of his work at the family shop.
Whilst the applicant may disagree with that conclusion, it is apparent that the IAA considered the information in detail.
Any suggestion that the IAA erred in that regard cannot be made out.
No jurisdictional error arises in relation to ground one.
Ground two
Ground two states:
2.IAA misunderstood the well-founded fear test.
Particulars
Above particulars in ground 1 apply.
In ground two, the applicant alleges that the IAA misunderstood the well-founded fear test and relies on the particulars set out in ground one above – relevantly, that the applicant would be imputed as having an LTTE profile because the authorities suspected that the family shop once belonged to the LTTE.
When the applicant references the “well-founded fear test”, the Court takes the applicant to mean that the IAA misunderstood what is commonly referred to as the “real chance test”. An applicant will have a well-founded fear of persecution for one or more of the grounds set out in s 5(J)(1)(a) of the Act if there is a “real chance of persecution”.
In Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22, the High Court assessed the “real chance test” as follows:
57.Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
In this matter, the IAA (correctly) explained the term “well-founded fear of persecution” as follows:
5.Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components which include that:
•the person fears persecution and there is a real chance that the person would be persecuted
•the real chance of persecution relates to all areas of the receiving country
•the persecution involves serious harm and systematic and discriminatory conduct
•the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion
•the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and
•the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
As outlined above (in relation to ground one), the IAA then considered the applicant’s family shop and any interactions the applicant may have had with the LTTE in detail (at [11]-[18]).
Having considered all of the applicant’s evidence and circumstances, the IAA ultimately made the following findings:
38.Assessing the applicant’s circumstances overall, I am not satisfied there is a real chance of him being seriously harmed for reasons of his Tamil ethnicity, gender, actual or imputed connections to the LTTE, his past detention, his brother’s disappearance, his origins from an area previously under the control of the LTTE, or any combination of those circumstances.
…
52.Considering together those of his claims which I have accepted against the country information before me, I am not satisfied that there is a real chance of the applicant being seriously harmed on return to Sri Lanka, now or in the reasonably foreseeable future.
On the basis of the information above, the Court is satisfied that the IAA properly understood and applied the “real chance test”.
No jurisdictional error arises in relation to ground two.
Ground three
Ground three provides:
3.IAA did not consider a relevant issue.
Particulars
IAA did not consider the country information relevant to the Applicant namely the Sri Lankan authorities still persecute those suspected of LTTE connections.
By ground three, the applicant claims that the IAA failed to consider country information suggesting that Sri Lankan authorities still persecute those suspected of having LTTE connections.
As outlined above, the IAA in this matter found that the applicant was not a person with LTTE connections. The Court notes, in particular, the IAA’s findings as follows (emphasis added):
32.The applicant's representative submitted to the delegate that the applicant satisfied at least two, if not three, of the risk profiles identified in the 2012 Guidelines issued by the United Nations High Commissioner for Refugees (UNHCR). The UNHCR Guidelines identify certain profiles that go beyond residency in an area previously controlled by the LTTE and which may, depending on the circumstances of the case, put a person at risk including supporters or those former LTTE supporters who were involved in sheltering or transporting LTTE personnel or goods. The Guidelines are now over five years old and on that basis, I give them less weight than other more recent country information before me. I do not, in any case, accept that the applicant would fall into one of these categories. I have accepted that the applicant’s family store sold goods and groceries to members of the LTTE. However, I am not satisfied that the applicant ever came to the attention of the authorities because of this or that he would be imputed as an LTTE supporter for that reason.
In circumstances where the IAA was not satisfied that the applicant had ever come to the attention of authorities or that he would be imputed as having LTTE connections, there was no need for the IAA to consider country information in relation to the likelihood of persecution of someone with (or suspected to have had) LTTE connections.
No jurisdictional error arises in relation to ground three.
Oral submissions
As outlined above, in oral submissions before this Court, the applicant asked why (if he did not have any connection with the LTTE) his brother had been taken and had never been seen again. The applicant also stressed that the LTTE came to the family shop, took his brother and killed him and that the LTTE are also “after” the applicant.
To the extent that the applicant suggests that the IAA overlooked the information about his brother’s disappearance, this also fails on a factual level.
The IAA considered the applicant’s brother’s disappearance in some detail in its written reasons (at [21]-[24]).
Ultimately, the IAA accepted that the applicant’s brother had been taken. However, the IAA simply did not accept that he had been taken for the reasons provided by the applicant. Relevantly, the IAA found as follows:
24.I accept the applicant’s brother S was abducted in January 2008 and remains missing and that the family fears he is dead. However, I am not satisfied that S’s disappearance was connected with the shop or that S was a person suspected by or of adverse interest to the authorities, or that his disappearance has had any consequences for the applicant, other than the personal tragedy of losing his brother.
Whilst the applicant may not agree with those findings, it cannot be said that the IAA did not consider information relating to the applicant’s brother’s disappearance.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit (filed by the applicant on 3 October 2017) and the applicant’s oral submissions before this Court have failed to identify any jurisdictional error on the part of the IAA.
This Court is also unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 September 2024
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