EOJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2
•3 FEBRUARY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EOJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2
File number(s): SYG 3175 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 3 February 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority overlooked a relevant consideration or a claim or misdirected itself as to the law considered – jurisdictional error established. Legislation: Migration Act 1958 (Cth), ss 473CB, 473DD Cases cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25
Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
DDK16 v Minister for Immigration & Anor [2017] FCCA 353
DIN19 v Minister for Immigration & Anor [2021] FCCA 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40
Minister for Immigration v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration v SZSRS (2014) 309 ALR 67
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365
Tickner v Chapman (1995) 57 FCR 451Number of paragraphs: 91 Date of hearing: 26 November 2020 Place: Sydney Counsel for the Applicant: Mr G Schipp Solicitor for the Applicant: Australian Presence Legal Solicitor for the Respondents: Ms H Musgrove of HWL Ebsworth Lawyers ORDERS
SYG 3175 of 2017 BETWEEN: EOJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
3 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 8 September 2017 into this Court, for the purpose of quashing it.
3.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
REASONS FOR JUDGMENT
JUDGE DRIVER
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 September 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka. He arrived in Australia as an Unauthorised Maritime Arrival at Cocos (Keeling) Islands on 17 October 2012.[1] He participated in an irregular maritime arrival entry interview on 14 January 2013.[2]
[1] CB 37
[2] CB 174
On 6 May 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).[3] He participated in a SHEV interview on 27 October 2016.[4]
[3] CB 15
[4] CB 113
The s 46A bar was lifted under letter from the Minister’s Department dated 23 December 2015.[5] An application for temporary protection (Class XD) visa was lodged on 6 May 2016.[6] At [5][7] the application notes that the applicant’s sister made a separate application. His sister is also referred to in the Entry Interview[8] at CB 180.
[5] CB 7
[6] CB 15ff
[7] CB 21
[8] CB 174ff
The applicant provided a supporting statement,[9] and claimed as follows:
(a)in 1996, at age 13, he was sexually assaulted by a member of the Sri Lankan Army (SLA);[10]
(b)in 2002, he was asked by a member of the SLA to write a letter in Tamil to a girl. However, this drew the attention of the Liberation Tigers of Tamil Eelam (LTTE) and he was questioned by them, and ordered to join their movement. He was held against his will overnight, but managed to escape and left the area to reside with his sister;[11]
(c)this drew the attention of the Criminal Investigation Division (CID) and he was regularly questioned by them regarding his connection with the LTTE. As a result of continuing harassment, he decided to work in Qatar and left the country.[12] He was then 21;
(d)his sister’s husband was shot in 2005 (while he was overseas). He returned to Sri Lanka to live with his sister in 2007, as he thought that he would no longer be of interest to the CID.[13] However, he was almost immediately questioned in regard to the shooting by the CID and regularly questioned thereafter.[14] In 2010, CID officers boarded his auto-rickshaw and demanded that he provide them with his LTTE number;[15]
(e)in 2011, he was ordered to get into a white van and taken to a SLA camp, where he was questioned by officers (who had been drinking) about his connection with the LTTE. He denied any connection. He was assaulted and knocked unconscious. He awoke in hospital where he remained for about nine days. He has a scar and back pain as a result of the incident.[16] He resumed living with his sister thereafter, but then relocated to various friends’ homes to avoid the CID;[17]
(f)in September 2012, his identity card was taken by a CID officer and he was ordered to attend a named army camp the following day. He did not attend and returned to stay with his sister.[18] He subsequently made arrangements to flee the country. His sister made the arrangements for travel and came with him;[19]
(g)he said that he feared harm on the basis that he was a Tamil, for imputed political opinion (including as a result of family connections). He claimed that his aunt, uncle and cousin were killed by the SLA. Another uncle was detained in a SLA camp, and another was tied to a tyre and set alight. He claimed that the scar on his knee would imply LTTE connection. He claimed to fear harm as a failed asylum seeker, including on his return at the airport;[20]
(h)the applicant was also subject to a data breach on the part of the Minister’s Department.
[9] CB 60ff
[10]CB 60 [3]
[11] [4]-[15]
[12] [16]–[18]
[13] [19]–[20]
[14] [21]-[22]
[15] [24]
[16] [25]
[17] [26]-[27]
[18] [28]-[29]
[19] CB 184
[20] [34]–[37]
The applicant and his sister were invited to interview together on 27 October 2016.[21] The applicant’s representative subsequently made submissions,[22] including as to scarring.[23]
[21] CB 112
[22] CB 124
[23] CB 134
On 9 November 2016, the delegate refused the application.[24]
[24] CB 153
Delegate’s decision
The delegate’s decision may be summarised as follows:
(a)after repeating the applicant’s allegations, the delegate noted that she found the applicant to be credible, with his version of events being largely consistent;[25]
(b)she accepted that the sexual assault occurred, but this was not a reason that the applicant left Sri Lanka or that he had fears because of it;[26]
(c)she accepted that the applicant had been captured by the LTTE, and that he had escaped and relocated. She accepted that he had been questioned regularly between 2002-2004 by the CID and that he travelled to Qatar from 2004-2007. She accepted that he was confronted by the CID in his rickshaw about LTTE involvement. She accepted that he was detained and injured in an incident that ultimately led him to be hospitalised. She accepted that he had been “requested to produce” his ID card by the CID;[27]
(d)the delegate accepted that the applicant had a “sizeable scar” but not that it occurred in any relevant incident, or that it would impute LTTE involvement;[28]
(e)she did not accept that he was treated as a suspect to his brother-in-law’s shooting after 2007. Nor did it accept that he was of significant interest to the CID or that he had an adverse profile. She accepted that the applicant has a genuine subjective fear of harm, but that it was based on speculation;[29]
(f)she accepted that he had been affected by a data breach;[30]
(g)she did not accept that there was a chance that the applicant would face serious harm as a result of his Tamil ethnicity or being a returned asylum seeker,[31] and determined that Australia’s protection obligations were not attracted.
[25] CB 155
[26] CB 156
[27] CB 156-157
[28] CB 157
[29] CB 158
[30] CB 159
[31] CB 163
The matter was referred to the Authority on 14 November 2016.[32]
[32] CB 300
The Authority
The Authority provided the applicant with the audio recording of the entry interview and the protection visa interview.[33]
[33] CB 330
Submissions were made by the applicant’s representative.[34] Those submissions included:
(a)the fact that the applicant’s position was exacerbated by the identification of the applicant’s sister as a former LTTE supporter;[35]
(b)the applicant’s sister has been granted protection in Australia, and he will be returned alone to Sri Lanka.[36] He is at risk from his former brother- in-law, a former Sinhalese SLA officer;
(c)his scar would impute LTTE membership;[37]
(d)his sister had been formerly photographed in LTTE uniform.[38]
[34] CB 333-338
[35] CB 335
[36] CB 336
[37] CB 337
[38] CB 337
The applicant provided a further statutory declaration, dated 5 December 2016.[39] In it, he alleged:
(a)his former brother-in-law would seek revenge on him;[40]
(b)there were exceptional circumstances in regard to this information, including:
(i)he was not aware that his sister’s claims were accepted at the time;
(ii)he was interviewed by the same delegate as his sister;
(iii)the information was not wholly new.
(c)from [5] he outlined his sister’s involvement in the LTTE, including her having been abducted and photographed in uniform.
[39] CB 339-340
[40] CB 339 [1]
The applicant provided further documentation to the Authority, being documentation regarding the grant of a protection visa to his sister including a Visa Grant Notice.[41]
[41] CB 345
Further submissions were made by the applicant’s representative, including:[42]
(a)the delegate should have considered the applicant’s sister’s evidence of threats and the possibility of harm to the applicant should he be returned to Sri Lanka;
(b)he has a profile that puts him at risk, particularly as he has no identity card. He will come to the attention of the authorities at the airport, and they will notice his scarring.
[42] CB 367
The applicant provided a further statutory declaration dated 23 March 2017, which claimed:
(a)he had been contacted by a friend in Sri Lanka, who had told him of threats against him and his sister by his former brother-in-law;[43]
(b)he stated that his mother had confirmed the threats;[44]
(c)his former brother-in-law had assaulted his brother and repeated the threats to him.[45]
[43] [2]
[44] [3]
[45] [4]
On 13 April 2017, the Authority returned the submission, as it (in combination with the earlier submission) exceeded the “allowed 5 pages” of submission.[46] The representative then submitted a single 5 page submission.[47] The applicant provided a single further statutory declaration dated 24 April 2017,[48] which appears to be a compilation of his earlier statutory declarations.
[46] CB 374
[47] CB 383
[48] CB 388
On 30 May 2017, the Authority invited the applicant to comment on information contained in the 2017 DFAT report,[49] specifically in regard to the allegedly improved conditions for Tamils in Sri Lanka.[50] Of interest to the applicant is the comment that torture is “not presently systemic or state-sponsored”,[51] given that the applicant fears, among other things, unauthorised retribution from a former SLA officer.
[49] “DFAT Country Information Report Sri Lanka” dated 24 January 2017
[50] CB 403
[51] CB 403
Submissions were made in response on 14 June 2017,[52] generally taking issue and submitting that any improvements were limited, relative to a low base, and not yet implemented.
[52] CB 419
The Authority decision
As noted above, on 8 September 2017, the Authority affirmed the decision not to grant the applicant a protection visa.[53]
[53] CB 432
The Authority first considered the introduction of new information under s 473DD of the Migration Act 1958 (Cth) (Migration Act). It determined that the statutory declaration of 24 April 2017 was new information, which could not have been provided to the delegate, and that there were exceptional circumstances to justify considering the new information.[54]
[54] CB 433 [5]
However, the Authority noted at [6] the existence of a 2013 joint application with the applicant’s sister. It confirmed that this information had not been provided by the Secretary (or the applicant) and the document was not before the Authority.
The Authority decision is summarised as follows:
(a)at [10], the Authority summarised the claims:
(i)the applicant feared harm from the Sri Lankan authorities, including the CID and police;
(ii)he feared harm as a Tamil, as a person with imputed political opinion due to family association with the LTTE, as a person who had been previously questioned, and as a person with a scar;
(iii)he feared harm as a result of being a returned asylum seeker;
(iv)he feared being detained for a long period on his return;
(v)he feared harm in the form of revenge from his former brother-in-law, a Sinhalese former SLA officer from whom he had received threats;
(b)at [13] it detailed his sister’s, and other family members’, adverse contact with the Sri Lankan authorities for perceived LTTE association;
(c)from [14]–[21] , the Authority narrated the applicant’s claims. The narrative regarding the threats by the applicant’s former brother-in-law is found at [21];
(d)the Authority considered that the applicant had submitted “generally consistent evidence” and accepted it at [24] subject to exceptions;
(i)it did not accept at [25] the threats were made, as the applicant did not know the surname of the friend that had advised him, or that his mother or brother would delay advising him. The implication is that it accepted that the applicant’s sister was threatened, but not him;
(ii)it accepted at [26] that various incidents had occurred to his family members, but not that the applicant was questioned about them. They all occurred before 2002;
(iii)it accepted that the applicant’s brother was questioned by authorities about his whereabouts once after he left Sri Lanka [27];
(e)from [31], the Authority considered the improving security situation for Tamils since 2015. From [38], it noted the UNHCR’s 2012 Eligibility Guidelines for Sri Lanka (Guidelines) and the real or perceived links with the LTTE which might give rise to a need for protection. At [40], it noted that most torture is no longer state sponsored or systemic;
(f)at [43] the Authority accepted the claimed factual basis of his family’s real or imputed association with the LTTE and the difficulties they have faced subsequently. It accepted the factual basis of his claims (save as in [25] and [26]). It may be inferred that his credibility was generally accepted;
(g)however, the Authority did not accept that the applicant was at risk of harm, because:
(i)the applicant was never questioned about his family’s LTTE association, and the events were long ago;[55]
[55] [45]
(ii)he was never “arrested, charged, or formally detained”, though questioned;
(iii)the security position for Tamils has improved;[56]
[56] [45], [49]
(iv)the retention of his identity card was not indicative of anything other than routine monitoring and harassment;
(v)although the authorities enquired about him after his departure, they have not shown further interest;
(vi)the sexual assault in 1996 was an isolated incident;[57]
[57] [46]
(vii)the presence of a scar will not contribute to or increase his profile;[58]
[58] [47]
(viii)his profile is not such that would suggest a risk of harm.[59]
[59] [48]
(h)in regard to applicant’s former brother-in-law, the Authority found at [52]:
(i)the applicant had not claimed to be approached by him since 2011 nor that the applicant’s mother and brother had been approached by him since 2012;
(ii)for this reason, he would not approach the applicant for information if he returned;
(iii)the applicant was not threatened by his former brother-in-law, nor did he approach the applicant’s mother and brother;
(iv)it was not satisfied that he had influence with the authorities;
(v)the applicant was not at risk of harm from his former brother-in-law;
(vi)the applicant notes that there is no finding that his former brother-in-law did not seek revenge against the applicant’s sister;
(i)in regard to being a failed asylum seeker, the Authority was not satisfied that there was a real chance that the applicant would face harm on return to Sri Lanka:[60]
(i)the fact that the applicant had a copy of his National Identity Card (NIC) (as opposed to the NIC itself) negated any difficulty in establishing identity,[61] the applicant notes that the Authority does not seem to have considered whether the authorities would ask why he no longer had his NIC;
(ii)it accepted at [60] that an asylum seeker with real or perceived links to the LTTE may be at risk of harm at the airport, however the applicant had no such links. He also had not played any part in pro-Tamil separatist activities while in Australia;
(iii)he was not at risk due to the Minister’s Department’s data breach;[62]
(iv)the treatment he is likely to receive on his return does not reach the level of serious harm.[63]
[60] [54]ff
[61] [57]
[62] [60]
[63] [61]–[67]
For these reasons, the Authority found that Australia’s refugee obligations [71] and complementary protection [79] obligations are not engaged.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 13 October 2017. The matter was initially docketed to Judge Barnes but, at a callover on 11 March 2019, her Honour transferred the matter to my docket.
The applicant now relies upon an amended application filed on 19 March 2018. The grounds in that amended application are:
1. That the Immigration Assessment Authority erred in the exercise of its jurisdiction, in failing to take into account a relevant consideration, namely the grant of asylum to the Applicant's sister.
Particulars
1.1.An integer of the the Applicant's claim was that the Applicant faced real chance of serious harm if returned to Sri Lanka on the basis of persecution as a failed asylum seeker (see generally at paragraphs 54 - 70 of the Authority's decision).
1.2. The Authority accepted “that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport.” (at 58)
1.3.In considering whether the Applicant would be perceived by the Sri Lankan authorities as having links with the LTTE, the Authority failed to consider the impact of grant of asylum to the Applicant's sister, with the consequence that the Applicant would be returning alone to Sri Lanka.
1.4.The Authority was satisfied that the Sri Lankan Government was aware that the Applicant and his sister had departed from Sri Lanka illegally for Australia (at 27).
1.5.The Authority further accepted that the Applicant's sister had been "detained, assaulted and otherwise harmed on numerous occasions by Sri Lankan authorities" on suspicion of involvement with the LTTE (at 43; see also 45).
1.6.The Authority further accepted that Applicant (and thereby his sister) would be assumed by the Sri Lankan authorities to have travelled to Australia for the purposes of seeking asylum (at 54 and 60).
1.7.An obvious inference, arising squarely on the material before the Tribunal, is that the Sri Lankan authorities may assume from the Applicant's sister non-return that she had been granted asylum on grounds of association or membership with the LTTE.
1.8.Joint travel for the purposes of asylum, with successful grant to one family member, is a directly relevant consideration for the purposes of determining whether the Sri Lankan authorities would suspect that the Applicant's had "links to the LTTE".
2. That the Immigration Assessment Authority misdirected itself as to the law in arriving at a finding material to the ultimate determination of the Applicant's claims for protection, and thereby committed jurisdictional error.
2.1 The Immigration Assessment Authority relied on UNHCR Eligibility Guidelines for Sri Lanka to assess whether “a person's real or perceived links with the LTTE may give rise to a need for international refugee protection” that identified inter alia “persons with family links or who are dependent on or otherwise closely related to … former LTTE combatants or 'cadres” as potentially giving rise to such need (at 38).
2.2 The Immigration Assessment Authority accepted that the “applicant's sister was abducted by the LTTE in about 1996, given a uniform to wear, had photos taken and was given an alias, that she was able to escape from the LTTE, that she was detained, assaulted and otherwise harmed on numerous occasions by the Sri Lankan authorities prior to 2002, including being held in a camp and tortured for about a month in approximately 1997.” (at [43]).
2.3 The Immigration Assessment Authority accepted that the applicant resided with his sister from around 2002 until 2011 (excepting a period in 2004 - 2007 when he resided in Qatar) (at 15 - 19. 24), and further that he illegally departed Sri Lanka with his sister in 2012 (at 21. 24) and that they each applied for protection in Australia (at 6).
2.4 The applicant was therefore on the evidence accepted by the Immigration Assessment Authority a person with family links or who is dependent on or otherwise closely related to ... a former LTTE combatants or 'cadres', being his sister.
2.5 The Immigration Assessment Authority nonetheless found that the "applicant does not have a profile that country information suggests he is at risk of harm from the Sri Lanka (sic) authorities, now or in the reasonable future, for any links to the LTTE or for any imputed political views" (at 48) as inter alia the applicant's sister had not been harmed since 2002, and the applicant had not in the past been questioned about his sister's activities (at 45).
2.6 In so doing the Immigration Assessment Authority erred at law in failing to consider the applicant's actual links to the LTTE (being by way of his sister's status as a former combatant or cadre) and whether that gave rise to a risk of harm in the future (irrespective of whether the applicant had suffered such harm in the past), either as a result of the Sri Lankan Authorities suspicions of the applicant's sister's connections to the LTTE being confirmed, or otherwise;
3. Further or in the alternate to Ground 2 above, the Immigration Assessment Authority's decision was affected by jurisdictional error in that:
3.1 It failed to consider the applicant's claims as to risk of harm as a member of a particular social group, being “persons with family links or who are dependent on or otherwise closely related to ... former LTTE combatants or “cadres””, being a claim that arose squarely on the facts before the Authority; and/ or
3.2 Its reasoning process in determining that the "applicant does not have a profile that country information suggests he is at risk of harm from the Sri Lanka (sic) authorities ..." was illogical, irrational and/ or unreasonable.
(errors in original)
Particular 3.2 to Ground 3 was not pressed.
In addition to the court book filed on 19 January 2018, I have before me as evidence the affidavit of Sam Worrad made on 2 July 2018, to which is annexed a transcript of the applicant’s interview with the delegate.
Both the applicant and the Minister filed pre hearing written submissions and made helpful oral submissions through their representatives at the trial on 26 November 2020.
CONSIDERATION
As the applicant notes in his submissions, the three grounds are closely related in that they all concern the manner in which the Authority considered, or failed to consider, evidence and claims relating to the applicant’s sister.
Applicant’s contentions
Ground 1: Failure to properly take relevant matters into consideration
In determining a matter, a decision maker must give “active intellectual consideration” to claims,[64] and must take into account relevant considerations.[65] A decision maker must take into account “credible, relevant and significant” material.[66]
[64] Tickner v Chapman (1995) 57 FCR 451
[65] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 at 39; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
[66] Kioa v West (1985) 159 CLR 550
Further, failure to take into account information may be a jurisdictional error, depending on the nature and importance of the evidence.[67] None of these propositions is controversial.
[67] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; Minister for Immigration v MZYTS [2013] FCAFC 114, Minister for Immigration v SZSRS (2014) 309 ALR 67 at [34]
The applicant submits that the Authority failed to take into account the evidence and its own findings in determining whether the applicant was at risk on his return to Sri Lanka, in particular as to the effect of the grant of a protection visa to the applicant’s sister.
The applicant submits that his sister’s non-return would suggest to authorities that she had been granted asylum in Australia on the basis of LTTE association of the type referred to in [43] and [45].[68] It must be assumed that he would be questioned about this matter on his return. This was a matter on which submissions were specifically made. Submissions of substance must be addressed.[69]
[68] CB 443-444
[69] SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at 389-391
The applicant contends that this inference would inevitably lead to the suspicion of family links with LTTE combatants/cadres.
The effect of the data breach is also said to be relevant. It included the information regarding family connections of asylum seekers. The Authority makes no finding about whether information was accessed in considering the data breach at [60], because the information, it was said, would do no more than alert the authorities to what they already knew: that the applicant was a returned asylum seeker, but this is said to be incorrect, it would also advise them that the applicant’s sister was also in detention.[70]
[70] Transcript 28
The applicant contends that the very fact that he has returned to Sri Lanka without his sister will, of itself, give rise to the perception that he is a person “closely related to” a former LTTE combatant or cadre. This was not considered.
The applicant submits that it must be noted that in addition to these matters, if questioned by authorities in regard to the above, the applicant would be faced with additional difficulties:
(a)he had no NIC, but only a copy (accepted by the Authority at [57]). It must be assumed that he would be questioned about why he had no NIC, but only a copy;
(b)he had been the subject of enquiries from “higher up” CID officials.[71] The Authority is said to have failed to take into account the inference that he had a profile of interest given that he was questioned, on the order of “higher up” officials, despite evidence from a SLA officer that he had no connection with an alleged offence.
[71] [17], [43]; see also Transcript page 14
The Authority is said to have failed to consider the cumulative effect of these considerations.[72]
[72] DDK16 v Minister for Immigration & Anor [2017] FCCA 353 at [103]
Ground 2: Misdirection in regard to a material finding
The applicant contends that prima facie he fits the profile outlined by the Authority at [38].[73]
[73] CB 441
The findings referred to above were to the effect that the applicant’s sister has been perceived as a former “combatant or cadre”. The findings were to the effect that the applicant was a person who was “dependent on or otherwise closely related to” such a person.[74]
[74] CB 441 [33]
However, the Authority found at [43] that the applicant did not “have a profile that country information suggests he is at risk of harm from the Sri Lanka[n] authorities, now or in the foreseeable future” [presumably meant to read “reasonably foreseeable future”] “for any links to the LTTE or for any imputed political views”. This is said to be because the applicant’s sister had not been harmed since 2002, and the applicant had not been questioned about his sister’s activities.[75]
[75] at [45]
The finding at [48] is said to fail to consider the applicant’s actual links to the LTTE (being “closely related or dependant on” his sister). If the Authority had so considered those risks, it would have had to consider whether those links gave rise to a risk of harm in the future (whether or not the applicant had suffered from such harm in the past).
The applicant contends that that risk could have resulted from the confirmation of previously held suspicions (which must be inferred from the findings referred to above), which was likely to occur when the authorities perceived that she had been granted asylum in Australia. That perception would arise when the applicant was returned to Sri Lanka without his sister.
Ground 3.1: particular social group
It is uncontroversial that a decision maker must consider all integers of a claim. The distinction between claims and evidence is difficult to draw.[76]
[76] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]
The applicant contends that his claim, that he was a member of a particular social group of “persons with family links or who are dependent on or otherwise closely related to former LTTE combatants or cadres”, was either explicit or arose squarely on the materials.[77]
[77] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
The Authority did not consider whether there was such a particular social group, whether the applicant was a part of that particular social group, or whether there was a risk of harm to that particular social group.
The High Court has provided direction on the expression “particular social group” in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4.
Such an enquiry would have required the factual consideration as to whether such a social group exists in the community, and there would have had to be consideration of country information to that effect. Evidence for the existence of such a group can be inferred from the DFAT material before the Authority.
On the findings outlined above, it is said to be likely that the applicant would have been found to be a member of such a group.
The applicant submits that, had the Authority considered that he fell into this particular social group, it would have had to then determine whether he would be persecuted for reason of his membership in that group. Other considerations such as the legitimacy and aims of any such persecution may have arisen. However, this is not a task that the Authority embarked upon, and the jurisdiction was left unexercised.
Minister’s contentions
Ground 1
As the Minister understands it, the first ground contends that the Authority failed to consider the applicant's claims and evidence, insofar as they related to a risk of harm arising from the Minister’s Department's grant of a protection visa to the applicant's sister.
The Authority was satisfied that the applicant's sister was abducted by the LTTE in about 1996, given a uniform to wear, had photos taken and was given an alias; that she was able to escape from the LTTE, that she was detained, assaulted and otherwise harmed on numerous occasions by the Sri Lankan authorities prior to 2002, including that she was held in a camp and tortured for about a month in approximately 1997.[78]
[78] CB 438 [26]; CB 443 [43]
However, having regard to the Guidelines and the other information before it, the Authority did not consider the applicant to be at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future,[79] citing the following reasons:
[79] CB 443 [44]; CB 445 [50]
(a)the applicant was never questioned about his family's possible LTTE associations, and the events in respect of the applicant's sister and his other family members occurred prior to 2002, some 15 or more years ago;[80]
(b)the applicant was never arrested, charged or formally detained by the Sri Lankan authorities;
(c)country information indicated that the monitoring and harassment of Tamils had significantly reduced under the current government;
(d)the Authority was not satisfied that the CID officer retaining the applicant's NIC on 5 September 2012 was demonstrative of the authorities specifically targeting the applicant;
(e)the Sri Lankan authorities made enquiries shortly after the applicant left Sri Lanka but had not shown any further interest in him or his whereabouts;[81]
(f)the Authority was satisfied that the event suffered by the applicant in 1996 was an isolated incident;[82]
(g)the Authority was not satisfied that the applicant's scar would contribute to, or increase, his profile with the Sri Lankan authorities;[83]
(h)the applicant did not have a profile that country information suggested he would be at risk of harm from the Sri Lankan authorities for any links to the LTTE or for any imputed political views;
(i)the Authority did not consider that the Sri Lankan authorities would have had any adverse interest in the applicant had he remained in Sri Lanka (other than as part of the then general monitoring and harassment of Tamils), or that he would be of any adverse interest to the Sri Lankan authorities on return;[84]
(j)country information overall assessed the situation in relation to ongoing human rights issues in Sri Lanka, as well as the general political and security situation in Sri Lanka, as improved.[85]
[80] CB 443 [45]
[81] CB 443 [45]
[82] CB 444 [46]
[83] CB 444 [47]
[84] CB 444 [48]
[85] CB 444 [49]
The Authority also considered the risk faced by the applicant as a returning asylum seeker and because of his illegal departure from Sri Lanka. The Authority accepted that the applicant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally.[86]
[86] CB 445 [54]; CB 446 [60]
The Authority observed that although the applicant did not have his NIC, he did have copies of the NIC, his birth certificate and his Sri Lankan driver's licence that contained his NIC number to help establish his identity when processed at the airport.[87]
[87] CB 445 [57]
While the Authority accepted that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport, it did not accept the applicant would be at risk of adverse attention from the current Sri Lankan authorities when scrutinised on arrival in Sri Lanka, citing the following reasons:
(a)the applicant was never arrested or charged in relation to suspected LTTE involvement;
(b)his questioning and mistreatment by the Sri Lankan authorities and the questioning of his brother shortly after he left Sri Lanka were part of the then routine harassment and monitoring of Tamils;
(c)the 2014 data breach would only alert the Sri Lankan authorities to the fact that he was an asylum seeker, which they would know from the circumstances of his return from Australia;[88]
(d)the Authority was not satisfied at [61] that the applicant's profile would be increased by the fact he had spent almost five years in Australia as an asylum seeker.
[88] CB 446 [60]
By the first ground, the applicant contends that the Authority failed to consider whether the Minister’s Department's grant of a protection visa to his sister, with the consequence that he would, if he returned to Sri Lanka, return by himself, would increase his profile such that he would face a real chance of harm on account of actual or perceived links to the LTTE.
In the Minister’s submission, while the ground of review is couched as a failure to consider claims and evidence, it is in fact an attempt to re-cast the applicant's claims and evidence before the Authority.[89]
[89] The applicant contends that "it must be assumed that he would be questioned about [his sister's non-return] on his return. This was a matter on which submissions were specifically made" and this inference would invariably lead to the suspicion of family links with LTTE combatants/cadres".
It is evident that the applicant claimed, before the Authority, that:
(a)the interest in him was "exacerbated by his [sister's] identification as a former LTTE supporter";[90]
(b)if he returned to Sri Lanka without his sister and nephew, it was plausible his former brother-in-law would assert his influence to have the applicant charged;[91]
(c)should the applicant's sister obtain protection from Australia, he would be returned to Sri Lanka without his sister; in these circumstances, he had a real risk of being harmed by his former brother-in-law.[92]
[90] CB 335; see also CB 337; CB 383-384
[91] CB 336
[92] CB 336-337; CB 367; CB 384-385; CB 419
The applicant's claim, that the Minister’s Department's grant of a protection visa to his sister, with the consequence that the applicant would, if he returned to Sri Lanka, return by himself, would increase the applicant's profile such that he would face a real chance of harm on account of actual or perceived links to the LTTE, is said to be an entirely new claim, which was not made before the Authority.
The Minister submits that the Authority considered the applicant's claims raised by the evidence and the contentions before it. The Authority did not consider the applicant to be at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future.[93] Most relevantly, the Authority considered that the applicant was never questioned about his family's possible LTTE associations, and that the events in respect of the applicant's sister and his other family members occurred prior to 2002, some 15 or more years ago.[94]
[93] CB 443 [44]; CB 445 [50]
[94] CB 443 [45]
The claim that the applicant now seeks to raise, that the Sri Lankan authorities would infer, by the non-return of the applicant's sister, not only that she had been granted asylum in Australia, but the basis on which she had been granted asylum; namely, on the basis of LTTE association, and that this would "inevitably lead to the suspicion of family links with LTTE combatants/cadres" is said to be not only new, but entirely speculative.
It should be noted that the Authority acknowledged it had information before it, including the Minister’s Department's correspondence to the applicant's sister granting her a protection visa. The sister's SHEV application was not before the Authority.[95]
[95] CB 433 [6]
The Minister submits that insofar as the applicant claimed to fear harm should he be returned to Sri Lanka without his sister, this claim related to harm from his former brother-in-law. The Authority expressly dealt with this claim, and found the applicant’s former brother-in-law did not threaten to kill the applicant or approach his mother and brother after the birth of his sister's second child in February 2017, and was not satisfied that the applicant was at risk of harm from his former brother-in-law for reasons of revenge or otherwise; nor was the Authority satisfied that his former brother-in-law had any influence with the Sri Lankan authorities.[96] The Authority was not satisfied that the applicant was at risk of harm from his former brother-in-law if he returned to Sri Lanka.[97]
[96] CB 445 [52]
[97] CB 445 [53]
In NABE at [62], the Full Federal Court citied with approval, the following observations by Gleeson CJ (in dissent), in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114 [1]:
Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
Similarly, the Minister submits that the applicant made no claim before the Authority to fear harm from the data breach, insofar as the information would alert the Sri Lankan authorities to the fact that his sister was also an asylum seeker. It is trite to observe that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.[98]
[98] NABE at [61]
Contrary to the applicant's contentions, the Authority expressly considered and accepted the applicant's claims that he had been questioned by the CID on various occasions in respect of whether he was involved in the LTTE, and also in respect of the shooting of his former brother-in-law. The Authority also accepted that a CID officer had retained the applicant's NIC.[99] Notwithstanding the Authority's acceptance of these claims, it did not consider the applicant to be at risk of harm for reason of any links to the LTTE or any imputed political opinion.[100] Nor was it satisfied that there was a real chance the applicant would face harm on his return as a failed asylum seeker.[101] The Minister submits that the applicant's contention that the Authority failed to cumulatively assess the relevant risks cannot be made out.
[99] CB 443 [43]
[100] CB 443 [44]
[101] CB 445 [57]
Ground 2
The Minister submits that the applicant's assertion that the applicant prima facie fits the profile outlined by the Authority at [38] ie a person with real or perceived links with the LTTE, raises no higher than a request for impermissible merits review.
Notwithstanding that the Authority was satisfied that the applicant's sister was abducted by the LTTE in about 1996, given a uniform to wear, had photos taken and was given an alias; that she was able to escape from the LTTE, that she was detained, assaulted and otherwise harmed on numerous occasions by the Sri Lankan authorities prior to 2002, including that his sister was held in a camp and tortured for about a month in approximately 1997,[102] the Authority did not consider the applicant to be at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future.[103] The Authority cited a series of reasons for reaching this decision, including that the applicant was never questioned about his family's possible LTTE associations, and that the events in respect of the applicant's sister and his other family members occurred prior to 2002, some 15 or more years ago.[104] The Minister submits that it could not fairly be said that in reaching this decision, the Authority did not consider the applicant's actual or perceived links to the LTTE.
[102] CB 438 [26]; CB 443 [43]
[103] CB 443 [44]; CB 445 [50]
[104] CB 443 [45]
The Minister submits that, contrary to the applicant's assertion, the Authority expressly considered that the Sri Lankan authorities would not have had any adverse interest in the applicant had he remained in Sri Lanka (other than as part of the then general monitoring and harassment of Tamils), or that he would be of any adverse interest to the Sri Lankan authorities on return.[105] Insofar as the applicant seeks to rely on a claim that the Minister’s Department's grant of a protection visa to the applicant's sister, with the consequence that the applicant would, if he returned to Sri Lanka, return by himself, increasing the applicant's profile, the Minister reiterates his submissions in response to Ground 1.
[105] CB 444 [48]
Ground 3
By Ground 3, the applicant contends that the Authority failed to consider the applicant's claim that he was a member of particular social group of "persons with family links or who are dependent on or otherwise closely related to former LTTE combatants or cadres".
The applicant's reliance on the Authority not making an explicit finding as to whether he feared being persecuted for reason of membership of any particular social group is said to be misguided.
This is said to be because the Authority rejected the factual premise upon which any claim to fear harm on such a basis would rest. The Minister contends that it was not necessary for the Authority to specifically consider any claim to fear persecution for reason of the applicant’s membership of the purported particular social group, as this integer of the applicant’s claim to fear harm was subsumed in the Authority’s findings of greater generality.[106]
[106] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
The Authority expressly considered that the applicant was never questioned about his family's possible LTTE associations, and that the events in respect of the applicant's sister and his other family members occurred prior to 2002, some 15 or more years ago,[107] in reaching the decision it did not consider the applicant to be at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future.[108] Nor was the Authority satisfied that there was a real chance the applicant would face harm on his return as a failed asylum seeker.[109]
[107] CB 443 [45]
[108] CB 443 [44]; CB 445 [50]
[109] CB 445 [57]
The Minister submits that the applicant's assertion that it is likely he would have been found to be a member of such a group, raises no higher than a request for impermissible merits review.
Resolution
It is important to note that the applicant’s credit was satisfactorily established. His fears were genuine, although not well-founded. The question to be answered is whether the Authority erred in not considering the reasons why the applicant’s sister was granted protection and, if so, whether such error was material.
The applicant claimed that he was at risk of serious harm as a failed asylum seeker. His status was accepted by the Authority at [54]–[70].[110] The Authority accepted at [60] that there was a possibility that a person with “actual or perceived links to the LTTE” would be at risk when processed at the airport.
[110] CB 445-448
The Authority relied on the Guidelines. It noted at [38] that the Guidelines indicated that persons with real or perceived links with the LTTE may give rise to a need for international refugee protection. The nature of the links could vary, but included:
(a)former LTTE combatants or cadres, and
(b)persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
The Authority considered at [38] whether the applicant would have these “real, actual or perceived links”. Relevantly to the applicant, this includes his sister.
The Authority accepted in relation to the applicant’s sister:
(a)she had been abducted by the LTTE, given a uniform, photographed and given an alias, that she was able to escape;[111]
(b)she had been “detained, assaulted and otherwise harmed on numerous occasions by the Sri Lankan authorities” on suspicion of involvement with the LTTE.[112] She had been held in a camp for a month by the Sri Lankan authorities and tortured;
(c)the applicant had resided with his sister from 2002-2004 and 2007-2011;[113]
(d)the applicant had departed Sri Lanka illegally with his sister in 2012.[114] According to the evidence, the applicant’s sister organised both of their travel;[115]
(e)the applicant and his sister had each applied for asylum in Australia. There was initially a joint application;[116]
(f)the Authority accepted at [54] and [60] that the Sri Lankan authorities would assume that the applicant have travelled to Australia to claim asylum. The same assumption must apply to the applicant’s sister.
(g)the “data breach” related to the applicant.[117]
[111] [43]
[112] [43], [45]
[113] [15] – [19], [24]
[114] [21], [24], [27]
[115] CB 184–185
[116] [6]
[117] [28]
An issue not raised by the parties is whether the Secretary of the Minister’s Department breached s 473CB of the Migration Act by not providing to the Authority the departmental file concerning the claim to protection by the applicant’s sister, or at least the decision of the delegate on that application. Generally, a decision on another person’s claim for protection is not relevant to a claim for protection by another person, as individual circumstances differ. However, where a joint application is made, the circumstances of all the applicants must be considered, and where claims are common, though made separately as may be the case with a family group, the circumstances of one applicant may well impact upon the consideration of the circumstances of related applicants. If the issue had been raised, I would have taken the same view that I took in DIN19 v Minister for Immigration & Anor[118] at [103]-[104].
[118] [2021] FCCA 1
In the present case, the applicant and his sister had initially made a joint application. Although they subsequently pursued separate applications, they were interviewed on the same day by the delegate, who made separate decisions. The applicant’s sister was successful while the applicant was not. The reasons why the delegate distinguished between the applicant and his sister are not known, because her decision concerning the sister was not provided to the Authority. Neither did the Authority ask for it. That disinterest is, to my mind, remarkable.
The travel to Australia by the applicant and his sister and their pursuit of protection was a joint enterprise. They had lived together for many years in Sri Lanka and their claims overlapped in at least two critical respects; the first was the threat posed by the applicant’s former brother-in-law; the second was the risk of being imputed with a political opinion supportive of the LTTE and the consequences of that.
The applicant invites the Court to speculate on what might happen to him on return to Sri Lanka without his sister. He asserts that the Sri Lankan authorities will assume that his sister has been granted protection and that the reason is her past association with the LTTE. This in turn is said to raise the profile of the applicant to one facing a real chance or risk of serious harm.
Such speculation is not the function of the Court, as the Minister points out. An assessment of future risk is, however, central to the review function of the Authority. On what basis could the Secretary of the Minister’s Department, or the Authority, have concluded that the reasons why the applicant’s sister had been granted protection were not relevant to the applicant’s review? Those reasons bore directly on his claims to fear harm at the hands of his former brother-in-law and because of his sister’s LTTE connection.
In my view the delegate’s decision concerning the applicant’s sister was relevant to the applicant’s review, and the Authority fell into error by not considering it. It follows that Ground 1 has been established because the Authority failed to consider an issue that squarely arose on the available material, let alone the material that the Authority was not given and elected not to obtain.
Ground 2 is not established for the reasons advanced by the Minister. The ground invites speculation by the Court and is an appeal to the merits. Those merits are for the Authority to determine after considering all the relevant material, which has not yet occurred.
Likewise, Ground 3 fails for the reasons advanced by the Minister. If the Authority is able to lawfully determine that the applicant is not at risk because of his family’s LTTE connections or for any other reason, the question of his membership of a particular social group, however described, becomes immaterial.
CONCLUSION
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks in the form of the constitutional writs of mandamus and certiorari.
I will hear the parties as to costs.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 3 February 2021
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