ETF17 v Minister for Immigration - [2020] FCCA 3299

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETF17 v MINISTER FOR IMMIGRATION

[2020] FCCA 3299

Catchwords:
MIGRATION – Review of delegate’s decision – Safe Haven Enterprise (Class XE) (Subclass 790) visa – where the Applicant was an ‘excluded fast track review applicant’ – claims for protection also previously made in Norway – whether the Delegate adequately referred to or engaged with the various integers of the Applicant’s claims – whether the Delegate’s decision was unreasonable – no jurisdictional error found – application dismissed with costs.

Legislation:
Migration Act 1958 (Cth), ss.5, Pts.7 and 7AA
Prevention of Terrorism Act (Sri Lanka)

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26
FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZSZW v Minister for Immigration and Border Protection [2015] FCA 562

Applicant:

ETF17

Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File number:

MLG 2295 of 2017

Judgment of:

Judge Blake

Hearing date:

8 October 2020

Date of last submission:

8 October 2020

Delivered at:

Melbourne

Delivered on:

4 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application filed on 24 October 2017 and amended on 10 September 2020 be dismissed.
The Applicant pay the Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2295 of 2017

ETF17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The present proceeding arises from an application by the Applicant for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (‘visa’).
On 25 September 2017, a delegate of the Respondent (‘Delegate’) refused to grant the application for the visa (‘Decision’).
The Applicant was a ‘fast track applicant’ and the Decision was a ‘fast track decision’ as contemplated by s.5 of the Migration Act 1958 (‘Act’). The Delegate also determined that the Applicant was an ‘excluded fast track review applicant’ for the purposes of Pt.7AA of the Act. As a result of this, the Decision was not reviewable under Pts.7 or 7AA of the Act. Accordingly, the Applicant seeks review of the Decision of the Delegate in this Court.
For the reasons that follow, I have decided to dismiss the application for review.

Background

The Applicant is a Tamil from Sri Lanka.
In April 2007, he went to Norway to seek protection. He remained in Norway until June 2011 when he was either removed or deported from Norway.
The Applicant arrived in Australia on 25 September 2012 by boat. He participated in an interview upon his arrival (Court Book 1).
On 23 January 2013, the Applicant participated in an Irregular Maritime Arrival Entry Interview with an officer of the Department of Immigration and Border Protection (‘Department’) (Court Book 13).
On 10 September 2015, the Applicant was invited by the Department to apply for the visa.
On 13 April 2016, the Applicant applied for the visa. The Applicant provided a Statutory Declaration with his application for the visa which set out his claims for protection (Court Book 80 - 89).
By way of a letter dated 8 September 2016, the Applicant was invited to attend, and subsequently did attend, an interview with a delegate of the Minister on 29 September 2016.
On 25 September 2017, the Delegate refused to grant the Applicant the visa.
On 24 October 2017, the Applicant applied to this Court for judicial review of the Decision. The Applicant also filed an affidavit in support of the application which annexed the Decision.
The Applicant subsequently filed an Amended Application and written submissions. The Minister filed written submissions and a Court Book.

The Applicant’s claims

The Applicant’s claims are set out principally in a Statutory Declaration that accompanied his application for the visa and is reproduced at Court Book 80 – 89. In that document, the Applicant provides a detailed account of events to which he was subjected upon his return from Norway to Sri Lanka in 2011. Among other things, the Applicant claims to have been detained on arrival in Sri Lanka, required to pay a bribe in order to be released, required to attend at an army camp on various occasions where he was insulted, beaten, urinated on, and sexually assaulted, required to pay further bribes of up to 5 lakhs, had his passport documents taken from him, had his credit card taken from him and misused, and that police falsified reports he made to them. He also details visits to his parent’s house by the Criminal Investigation Department (‘CID’) since leaving for Australia.

The Decision of the Delegate

The Decision of the Delegate is set out from page 133 of the Court Book. The structure and approach that the Delegate took in relation to the present matter assumes some significance in this matter. That is because the principal complaints of the Applicant under grounds 1 and 2 of the grounds of review is that the Delegate either failed to consider various claims, or reached unreasonable conclusions in coming to his findings. The central thrust of the Minister’s response, as I understand it, is twofold. First, the Delegate made findings of greater generality which subsumed the matters complained about by the Applicant. Further and importantly however, it is submitted by the Minister that the findings made by the Delegate were essentially underpinned by an analysis that the Delegate conducted using, among other things, up to date Country Information to assess whether the Applicant faced a well-founded fear of persecution, or a real risk of suffering significant harm.
The Delegate summarised the Applicant’s claims for protection at Part 4 of the Decision as follows (Court Book 134):
‘• The applicant is a Tamil originating from Jaffna.
• The applicant made an unsuccessful application for refugee status in Norway, which was rejected in 2009. The applicant was deported back to Sri Lanka in June 2011.
• On his return, the applicant was made to pay a bribe to clear immigration.
• In August 2011, the applicant was summoned to a local Army camp for questioning. The applicant was accused of going to Norway to collect money for the LTTE, and was beaten.
• The applicant had attended a protest in Norway and the CID officers had pictures of the applicant’s attendance.
• The applicant was forced to pay a bribe by the CID for four lakh rupees but the men also took his credit card.’
The Delegate then made findings of fact. The Delegate:
a)found that the Applicant lived in Norway until 2011 (Court Book 134);
b)found that the Applicant had participated in pro-Tamil protests while living in Norway (Court Book 135);
c)found that the Applicant was detained on return to Sri Lanka (Court Book 135);
d)stated that there was no evidence to support the Applicant’s claim to have paid a bribe in order to clear immigration (Court Book 135);
e)found the Applicant had been required to attend his local army camp and was detained there (Court Book 135);
f)found the authorities in Sri Lanka did not hold significant concerns in relation to the Applicant on the basis that, among other things, he had not been arrested nor sent to a rehabilitation camp (Court Book 135);
g)did not accept the authorities in Sri Lanka believed the Applicant was remitting funds in support of the Liberation Tigers of Tamil Eelam (‘LTTE’) (Court Book 135); and
h)accepted that the Applicant’s credit card was misused, but noted there was no evidence to support the claim that the culprit was the CID.
Having made those findings, the Delegate then considered the application of Australia’s protection obligations to the Applicant. The consideration by the Delegate of the refugee assessment criteria occurred in four distinct components.
The Delegate first assessed whether the Applicant met the refugee criteria because his Tamil ethnicity resulted in a real or imputed political association with the LTTE. In respect of this component of the refugee assessment criteria, the Delegate (at Court Book 135-6):
a)considered extensive Country Information, including information from the Department of Foreign Affairs and Trade (‘DFAT’) dated 24 January 2017, the United Nations (‘UN’) Human Rights Commission dated October 2015, and the United Kingdom Home Office dated 19 May 2016;
b)found a chance of the Applicant being imputed with an LTTE connection for reasons of the Applicant’s Tamil ethnicity was remote;
c)noted that the Applicant had not claimed to be politically active in Sri Lanka and that he does not have a political profile of any kind;
d)found that being a Tamil in Sri Lanka of itself is not a reason for the Applicant to be imputed with an LTTE connection; and
e)was satisfied the Applicant does not hold a well-founded fear of persecution for this reason.
The Delegate then assessed whether the Applicant met the refugee criteria because he was a Tamil from a former LTTE controlled area. In respect of this component of the refugee criteria assessment, the Delegate (at Court Book 136-7):
a)considered extensive Country Information from a range of sources including the same DFAT report from 2017, a United Nations High Commissioner for Refugees (‘UNHCR’) report dated 21 December 2012, the United Kingdom Home Office report dated March 2017, the United States Department of State report dated 13 April 2016 and an extract of information from the Norwegian Country of Origin Information Centre dated 1 December 2012;
b)found the Applicant was of no interest to the Sri Lankan authorities for any reason when he left the country;
c)found, given the improved situation in the north of Sri Lanka and noting that the Applicant does not have real or perceived links to the LTTE, that the chance of him facing persecution for this reason was remote, even if there is an ongoing military presence in the area (Court Book 137-8);
d)found the Applicant does not have a well-founded fear of persecution for being a Tamil from the north of the country or from being from an area previously controlled by the LTTE (Court Book 138); and
e)accepted that the Applicant may be at risk of discrimination in Sri Lanka, however found that the level of discrimination described (if it were to occur) would not amount to serious harm (Court Book 138).
The Delegate then assessed whether the Applicant would meet the refugee criteria because of his stolen credit card. In respect of this component of the refugee criteria assessment, the Delegate (at Court Book 138):
a)noted that the Applicant’s credit card was taken and misused, but that there was not evidence to attribute a culprit;
b)found the chance of harm from this event to be remote, given the period of time that had passed since the event occurred; and
c)found, additionally, that the Applicant had the capacity to engage state protection, as evidenced from his statement to the police.
The Delegate then assessed whether the Applicant would meet the refugee criteria because he was a failed Tamil asylum seeker who departed illegally. In respect of this component of the refugee criteria assessment, the Delegate (at Court Book 138-9):
a)considered extensive Country Information from a range of sources;
b)noted the earlier finding that the Applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country;
c)noted there was no information to suggest that Tamils who have lived or stayed abroad are facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka, or for being a failed asylum seeker;
d)found the Applicant does not hold a well-founded fear of persecution on account of being a Tamil failed asylum seeker;
e)in light of the Applicant’s illegal departure, observed that the Applicant’s identity is likely to be checked and he would be questioned on arrival at the airport;
f)found he would not be exposed to harassment or any type of harm that would amount to serious harm on his return, given that he does not have a criminal background and is not of interest to the authorities;
g)considered the Applicant would likely be questioned, briefly detained and fined as a result of departing Sri Lanka illegally, and was satisfied that any short period of detention to facilitate the processing of charges or fines would not amount to serious harm; and
h)was satisfied that the Applicant does not hold a well-founded fear of persecution on account of being a failed Tamil asylum seeker who departed Sri Lanka illegally.
The Delegate then considered all of the claims of the Applicant both individually and cumulatively, and concluded that the Applicant would not face a real chance of persecution now or in the foreseeable future.
The Delegate then assessed the Applicant against the complementary protection criteria. The Delegate referred to his earlier findings. In light of those earlier findings, the Delegate concluded that there was no real risk of the Applicant facing significant harm for those reasons if returned to Sri Lanka in the foreseeable future.
Under the complimentary protection criteria, the Delegate also assessed whether the Applicant faced a real risk of significant harm as a result of his illegal departure. The Delegate noted that the Applicant could be detained on return to Sri Lanka while waiting to be heard by a Court or receive a monetary fine. The Delegate considered that the Applicant would only be detained for a short period of time, if at all, and was therefore satisfied that the claimed harm does not constitute significant harm.
As a result of the matters above, the Delegate concluded that the Applicant was not owed complementary protection.
Finally, the Delegate found that the Applicant was an ‘excluded fast track review applicant’ because he had made a claim for protection in a country other than Australia, and that claim had been refused.
There are at least two observations to be made about the Decision.
The Applicant’s claims relate to events that occurred in the period 2011-2012. The Delegate, however, was assessing an application made on

13 April 2016, and delivered the decision on 27 September 2017. It is apparent that in assessing the application for the visa, the Delegate considered carefully a number of pieces of Country Information which in turn covered events and developments in Sri Lanka that occurred from 2013 to 2017 (Court Book 135-138). The Delegate gave significant weight to these pieces of Country Information in reaching a conclusion as to whether the Applicant satisfied either the refugee criteria or the complementary protection criteria.
This is not to say that the Delegate ignored the circumstances of the Applicant. As outlined above, the Delegate made a number of key findings of fact. The Delegate then considered those facts, in the context of more up to date Country Information, to assess the risk of whether the Applicant faced a real chance of persecution, or a real risk of significant harm. It appears, from my review of the Decision, that the findings of fact upon which the Delegate placed significant weight included:
a)that the Applicant had travelled on out of Sri Lanka on a genuine passport in 2007 and as such, the Delegate was confident that the authorities held no concerns over the Applicant’s involvement with the LTTE;
b)that the authorities did not hold significant concerns in relation to the Applicant on the basis that, among other things, he had not been arrested nor sent to a rehabilitation camp (Court Book 135);
c)the Delegate’s non-acceptance of the assertion that the authorities in Sri Lanka believed the Applicant was remitting funds in support of the LTTE (Court Book 135);
d)that the Applicant’s credit card was misused, but that there was no evidence to support who the culprit was;
e)the chance of the Applicant being imputed with an LTTE connection for reasons of the Applicant’s Tamil ethnicity was remote;
f)the Applicant did not have a political profile of any kind;
g)that the Applicant was of no interest to the Sri Lankan authorities when he left the country;
h)given the improved situation in the north of Sri Lanka and noting that the Applicant does not have any real or perceived links to the LTTE, that the chance of him facing persecution for this reason was remote even if there is an ongoing military presence in the area (Court Book 137-138);
i)found the chance of harm arising from the Applicant’s credit card being taken and misused as being remote, given the period of time that has passed; and
j)there was no information to suggest that Tamils who have lived or stayed abroad are facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka, or for being a failed asylum seeker.
The question that then arises is whether the approach by the Delegate discloses jurisdictional error, having regard to the grounds of review.

The Application for Review

The Application filed on 24 October 2017 and amended on 11 September 2020 (‘Application’) contains four grounds of review. Ultimately, the Applicant did not press Ground 3 or particular (a) to Ground 4 of the Grounds of Review.
Ground 1 asserts a failure by the Delegate to consider relevant considerations. Ground 2 asserts that certain findings made by the Delegate were unreasonable.
There is not any dispute of significance between the parties in relation to the principles that I am required to apply in relation to Grounds 1 and 2 of the Grounds of Review. The one area of minor disagreement between the parties concerned the decision of the Full Court of the Federal Court of Australia in Minister for Home Affairs v Omar [2019] FCAFC 188 (‘Omar’). The Applicant emphasised that some weight should be placed on the principles set out by the Full Court in Omar, particularly paragraphs [34] and [36]. The Minister observed that Omar and the comments contained within it flowed from the Court’s consideration of a different statutory power. For present purposes, I regard it as unnecessary for me to resolve this dispute.
Insofar as the principles in respect of Ground two are concerned, they were conveniently summarised in the Minister’s written submissions at paragraph [28] which is reproduced below:
‘A finding of unreasonableness or illogicality or irrationality in reasoning is a high bar and requires more than emphatic disagreement with a Tribunal’s decision. The test is whether the decision is one at which no rational or logical decision maker could arrive on the same evidence or, put another way, whether it was “open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did on the material before it”. To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.”’

The other difference between the parties in relation to the application of applicable authority arises under Ground 4 and relates to the decision in FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20. I propose to deal with that issue later in these reasons when addressing Ground 4.

Ground one

The first ground of review in the Application asserts failure to consider a number of particularised ‘relevant considerations’. There are nine particulars to ground one.
Under this ground of review, the Applicant contends that the Delegate was required to consider each necessary and relevant consideration (Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24), every integer of the claim (SZSZW v Minister for Immigration and Border Protection [2015] FCA 562) and each material fact squarely raised (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26). The Applicant submits that the Delegate failed to consider each necessary and relevant consideration in respect of the claims, or their integers. The Applicant further submits that the absence in the Delegate’s reasons may allow the Court to draw an inference that the question or evidence was not regarded as material, or was not considered.
The Minister contended as follows. First, the Applicant was inviting the Court to undertake an impermissible merits review of the Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Second, that there was no requirement for the Delegate to make reference in its reasons to every piece of evidence or every contention the Applicant had made: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184. Third, that the claims to which the Applicant refers in the particulars to this ground were considered by the Delegate and were subsumed into findings at a higher level of generality in circumstances where, inter alia, the Delegate made specific findings in relation to the Applicant’s risk of harm in the reasonably foreseeable future.
With those matters in mind, I turn to consider each of the particulars raised by the Applicant.

Ground 1, particular (a)

Particular (a) is as follows
‘The delegate said, “I accept the applicant was detained on his return to Sri Lanka” (CB 135.3), but made no reference to or finding about the Applicant's claim that he was questioned and threatened during this detention.’
Under this particular, the Applicant takes issue with the following finding of the Delegate:
‘The applicant claimed that on his return to Sri Lanka he was forced to pay a bribe in order to clear immigration. Country information notes that failed asylum seekers are often interviewed by authorities on their return to determine their identity and any outstanding criminal or security issues. I accept the applicant was detained on his return to Sri Lanka but I do not have evidence to support the applicant’s claim to have paid a bribe.’
The Applicant submits that the finding above fails to adequately deal with the Applicant’s claim that he was questioned by the authorities, threatened, and that most of his money was taken.
A number of matters become apparent when the Decision is considered. The Delegate acknowledged the claim that the Applicant was made to pay a bribe to clear immigration at Part 4 of the Decision (Court Book 134). The claim of being made to pay a bribe was also expressly acknowledged by the Delegate in the paragraph that the Applicant now complains about (see extract above). Further, when the claim and the paragraph above is considered, it is apparent that the Delegate considered Country Information in relation to failed asylum seekers often being interviewed on return. The Delegate also accepted that the Applicant had been detained on his return to Sri Lanka. Further, underpinning all of this was the finding made by the Delegate at the top of page 135 of the Court Book that the Applicant had travelled out of Sri Lanka on his own, genuine passport, and the Delegate’s finding of confidence that the Authorities held no concerns over the Applicant’s involvement with the LTTE. In my view, these matters demonstrate not only an awareness of, but an engagement with the claim.
For these reasons, I am satisfied that the particular claims which the Applicant says the Delegate failed to consider were in fact considered, and that the findings are subsumed in the Delegate’s finding that the Applicant was detained.

Ground 1, particulars (b) and (c)

These particulars are as follows:
‘(b) The delegate accepted “that he [the Applicant] was detained at an army camp (CB 135.5) but made no reference to or finding about the integers or finding about the integers and details of the applicant’s claims that he was detained three times at the camp. (CB 83, [15] – CB 86, [49])
(c) The delegate noted that "the applicant claimed to have been detained and tortured" (CB 135.5), but made no reference to or finding about the integers and details of the applicant's claims that he was threatened by officers of the Sri Lankan CID with prison or death, and that they attacked him, jumped on him, caused bleeding from his ear, stripped him naked, handcuffed him behind his back, kicked him on the floor, urinated on him, burned him with cigarettes, sexually assaulted him, and beat him, and that this was in the context of questioning about involvement with and work for the LTTE and in the context of extortion. (CB 83, [15] - CB 86, [49])’
The findings of the Delegate (or lack thereof) with which the Applicant takes issue are found at page 135 of the Court Book and are as follows:
‘LTTE accusation
The applicant claimed to have been summoned to his local army camp and accused of being in Norway to raise funds for the LTTE. Country information supports the claim that Sri Lankans living overseas remit large sums of money back to Sri Lanka, and that the Sri Lankan authorities suspected the Tamil diaspora of funding the LTTE. However, I am also compelled by country information that notes that Tamils returning from abroad on suspicion of old LTTE involvement were arrested under the Prevention of Terrorism Act (PTA) and often sent to rehabilitation camps.
Though the applicant claimed to have been detained and tortured, he did not claim to have been arrested under the PTA, nor was he sent to a rehabilitation camp. This leads me to believe that the authorities did not harbour significant concerns that the applicant was affiliated with the LTTE. While I accept that the applicant was detained, I do not accept the authorities believed he was remitting funds in support of the LTTE.’
The Applicant’s submission is, in effect, that what is recorded above is inadequate. The reasoning, it is said, does not refer to or engage with the various integers of the Applicant’s claims as set out in his Statutory Declaration.
When the above paragraphs are considered, the following emerges. First, the Delegate acknowledges (of some importance for particular (b)) that the Applicant was summoned to his local army camp on three occasions and accused of being in Norway to raise funds for the LTTE. Second, the Delegate refers to Country Information, noting that Tamils returning from abroad on suspicion of LTTE involvement were either arrested or sent to rehabilitation camps. Third, and importantly insofar as particular (c) is concerned, the Delegate notes the Applicant’s claim to have been ‘detained and tortured’. Fourth, the Delegate notes that the Applicant did not claim to have been arrested under the Prevention of Terrorism Act (Sri Lanka), or sent to a rehabilitation camp. Fifth, the Delegate, having considered the above, concludes that the authorities did not harbour significant concerns that the Applicant was affiliated with the LTTE. Then, in concluding that the Applicant’s risk of persecution was remote, the Delegate reaches that conclusion, noting that it would be the case ‘even if there is an ongoing military presence in the area’ (Court Book 138).
The Applicant says that the failure to deal with the specific claims raised in the Applicant’s Statutory Declaration, and identified in the particulars to these grounds of review, constitutes jurisdictional error. There is no doubt that the Delegate did not make findings about the specific matters identified by the Applicant. The question is whether this constitutes jurisdictional error in the circumstances of this case, when the Decision is read fairly and in context.
In my view, the Delegate’s Decision and assessment of whether the Applicant satisfied the refugee criteria or the complementary protection criteria did not rest on the determination of each and every claim advanced by the Applicant. Rather, it rested on at least the following things. First, a finding, which in my view was open on the evidence, that the Applicant would not be seen as being affiliated with the LTTE. Second, that Country Information pointed to changes which had occurred in Sri Lanka in the intervening years. The Delegate assessed risk to the Applicant on this basis. While it acknowledged the Applicant’s claims, it did not need to make a separate finding in respect of every incident of detention or mistreatment, given the approach adopted.
For the above reasons, I consider these particulars do not give rise to jurisdictional error.

Ground 1, particulars (d) and (e)

These particulars are as follows:
‘(d) The delegate made no finding about the claims of the Applicant that he had suffered extortion by Sri Lankan officials, both by officials at the airport, and by officers of the CID at the army camp and elsewhere. (CB 82-83, [10]-[141; CB 135.3)
(e) The delegate made no finding about the claims of the Applicant that the police falsified his report about the theft of funds from his account by the CID officer who extorted his credit card from him. (CB 87, [59] - [681)’
Insofar as the Applicant alleges findings were not made about his claims of extortion, the following is relevant. First, the Delegate expressly acknowledged the claim that the Applicant ‘was forced to pay a bribe’. So much is apparent from the summary of claims set out Part 4 of the Decision (see the extract above). Second, the Delegate did reach a conclusion as to any attempt at extortion when the Applicant returned to Sri Lanka from Norway. At paragraph 3 of the Decision at Court Book 135, the Delegate accepted that the Applicant was detained on his return to Sri Lanka, but concluded that ‘I do not have evidence to support the applicant’s claim to have paid a bribe’ on return to Sri Lanka. Third, the Delegate also dealt with the Applicant’s claims of extortion upon his return to Sri Lanka. At paragraph 6 of the Decision at Court Book 135, the Delegate stated that he or she was prepared ‘to accept that the applicant’s credit card was misused, but I have no evidence to support the claim that the culprit was the CID’. When these matters are considered, I am of the view that the Delegate did consider and engage with claims that the Applicant had suffered extortion by Sri Lankan officials.
The Applicant then says that the Delegate did not make an express finding that the Police either did or did not falsify his report to them. I accept there is not an express finding as to whether the event alleged occurred. The Delegate has expressly referred, however, to the Applicant’s claim that he was threatened by the alleged perpetrators ‘after making a complaint to police’ (paragraph 4 of the Decision on page 138 of the Court Book). This suggests to me that the question of any issue with accessing protection from the Police was in the contemplation of the Delegate.
Earlier in these reasons, I referred to the approach taken by the Delegate to the claims that were advanced, and to the time that had elapsed between the making of the claims and the Delegate’s Decision. In that context, the Delegate makes, what I consider to be in the context of the Decision, a finding of some significance in relation to the particulars advanced. The Delegate states that ‘Given the period of time since this occurred I find the chance of harm from this event to be remote’ (Court Book 138, paragraph 4). That is an important finding by the Delegate. Effectively what the Delegate found was that the risk of harm from the events relating to extortion or the Applicant’s interaction with police was remote because those events had occurred some time ago.
For all of the above reasons, these particulars of complaint under this ground do not disclose error. The claims about extortion were dealt with as noted above. The claims in relation to the Applicant’s statement to the Police were not the subject of express findings. However, ultimately the Delegate dealt with this issue not on the basis of whether the Police report was falsified, but by observing that the events had occurred a long time ago and the Applicant was not a person of interest. It was open to the Tribunal to deal with the matter in that way, and the failure to deal with each specific claim identified by the Applicant does not, in my view, constitute jurisdictional error.

Ground 1, particular (f)

Particular (f) of Ground 1 is as follows:
‘(f) The delegate made no finding about the claims of the Applicant that people including CID officers came looking for him on a number of occasions before he left Sri Lanka, and also at least three times to his father's house and at least three times to his mother's house since he left the country. (CB 88, [75]-[76]; CB 89, [81])’
When the Decision is reviewed, there is not an explicit finding by the Delegate in relation to the specific claims that CID officers came looking for the Applicant both before and after he left Sri Lanka. The Applicant contends that it was critical that the Delegate engage with these issues and that without doing so, the Delegate could not reach a conclusion that Applicant was not of interest to the authorities.
The complaint by the Applicant noted above needs to be weighed against what follows. First, as noted earlier in these reasons, the Delegate concluded that the Applicant was not a person of interest to the authorities in Sri Lanka. Second, the Delegate had considered, among other things, country information in relation to the situation in Sri Lanka. At the bottom of page 137 of the Court Book, the Delegate in the Decision stated:
‘Overall, I have found that the applicant was of no interest to the Sri Lankan authorities for any reason when he left the country. Given the improved situation in the north of the country and noting the applicant does not have real or perceived links to the LTTE, I find the chance of him facing persecution for this reason is remote even if there is an ongoing military presence in the area. As such, I find the applicant does not have a well-founded fear of persecution for being a Tamil from the north of the country or for being from an area previously controlled by the LTTE.’
In my view, it was not necessary for the Delegate to make the express findings identified by the Applicant. The Delegate had made the finding above. It was a finding of greater generality sufficient to deal with the Applicant’s claims. It was unnecessary for the Delegate to go any further.

Ground 1, particulars (g), (h) and (i)

These particulars are as follows:
‘(g) The delegate failed to consider whether the Applicant may become of interest to the CID or other government authorities at least during the course of inquiries on his return as an illegal emigrant, when the delegate apparently accepted that the Applicant had in the past suffered accusation and interrogation of LTTE involvement and beating by the CID, as the Applicant had claimed (CB 82-89), and he also found that there would be inquiries by the CID, and may be inquiries of the local police and others, if the Applicant were to return to Sri Lanka. (CB 135, 138-139)
(h) The delegate failed to consider whether the Applicant had a real chance of suffering persecution, as a consequence of the matters set out in Particular (g) to this Ground.
(i) The delegate failed to consider whether the Applicant had a real risk of suffering significant harm including torture, as a consequence of the matters set out in Particular (g) to this Ground.’
The contentions contained within the particulars above need to be considered in light of the following passages from the Decision (Court Book 139 – 40):
‘In regards to the applicant’s illegal departure, the applicant’s identity is likely to be checked and he would be questioned at the airport on arrival. However, noting the applicant does not have a criminal background and was not of interest to the authorities when he left the country, I find he would not be exposed to harassment or any type of harm that would amount to serious harm on his return.
Even if he were to face charges for an illegal departure, there is no information to suggest that anyone has been given a custodial sentence for departing illegally. For people who have been convicted of illegal departure they have faced fines of between 5000 and 50000 rupees. The above information indicates that the applicant is likely to be questioned, briefly detained and fined as a result of departing Sri Lankan illegally. No information could be found to suggest that returnees being held for short periods in remand on illegal departure charges have faced ill-treatment while on remand. I have given regard to Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 with respect to whether being detained for departing illegally could amount to serious harm. I am satisfied that a short period of detention to facilitate the processing of such charges and fines does not amount to serious harm and therefore does not involve persecution’.
The paragraphs above in my view demonstrate that the Delegate expressly considered whether the Applicant would become a person of interest on his return. The Delegate considered the circumstances of the Applicant’s departure. The Delegate identified that the Applicant would likely be checked and questioned on his arrival at the airport. The Delegate found that, given the Applicant did not have a criminal background and was not of interest to the authorities, he would not be exposed to harassment or any other serious harm. The Delegate did not stop there. The Delegate went on to consider country information in relation to the likely penalties to be imposed on persons who were returned to Sri Lanka. Further, these matters were considered both in relation to an assessment of the Applicant under the refugee criteria and under the complementary protection criteria. In light of these matters, in my view, the complaint contained within this particular cannot be sustained.
In my view, for all of the reasons set out above, Ground one of the Grounds of Review must be dismissed.

Ground two

The second ground of review in the Application asserts that the Delegate fell into error in that he or she acted unreasonably or without logically probative evidence. There are five particulars to this ground. I turn to deal with each of them below.

Ground 2, particulars (a) and (b)

Under these particulars, the Applicant alleges as follows:
‘(a) The delegate said that "I do not have evidence to support the applicant's claim to have paid a bribe" for his release at the airport (CB 135.3), but this was either to ignore the fact that the Applicant's statutory declaration (CB 81-89) was evidence, or to require external corroborative evidence for an act of extortion that was in private, although the delegate did also accept that "There are also reports of continued human rights violations in Sri Lanka, including the use of torture against suspects and the ability of the security forces to act with impunity." (CB 137.3)
(b) The delegate said,
"Regarding the claim that the applicant's documents were stolen and his credit card was misused, I found the applicant's narrative to be generally credible. I am prepared to accept that the applicant's credit card was misused, but I have no evidence to support the claim that the culprit was the CID." (CB 135.6)
and
"I accepted that the applicant's credit card was taken and misused, though I did not have evidence to attribute a culprit." (CB 138.3)
This was either to ignore the fact that the Applicant's statutory declaration (CB 81-89) was evidence, or to require external corroborative evidence for an act of extortion that was in private, although the delegate did also accept that "There are also reports of continued human rights violations in Sri Lanka, including the use of torture against suspects and the ability of the security forces to act with impunity." (CB 137.3)’

As can be seen from the above, the Applicant’s complaint is that the statement by the Delegate that there was ‘no evidence’ to support certain claims is unreasonable given the Applicant had made a Statutory Declaration in relation to these matters. The Applicant submits that the Statutory Declaration was the ‘evidence’. Further, in respect of particular (b), the Applicant contends that it was unreasonable for the Delegate to accept the claim that the credit card was stolen, but not to accept the claim there was a ‘culprit’, when the evidence for both came directly from the Applicant.
There is a question that arises as to what the Delegate meant when he stated there was ‘no evidence’ in relation to each of the matters identified in the particulars above. The Delegate had the Applicant’s Statutory Declaration. The Decision discloses that the Statutory Declaration had been considered.
In my view, the statement by the Delegate (whether in particular (a) or (b) above) is simply a finding by the Delegate that, in the circumstances, and in the absence of corroboration or support for the particular claim, the Delegate would not accept the claim. It is not an error for a decision-maker to remain unsatisfied about a claim which is not supported by any independent evidence. Ultimately, that is a matter for the decision-maker.
Further, the complaint that the Delegate accepted some but not all of the Applicant’s claims set out in the Statutory Declaration does not render the finding unreasonable. What aspects of a claim may be accepted is a question for the decision-maker acting rationally. Whether a decision maker is prepared to accept some of what an applicant claims may turn on any number of matters, including, among other things, the nature of the allegation. In the circumstances of this case, and particular (b) especially, there is nothing unreasonable about a Delegate accepting the word of an Applicant that his credit card was stolen or misused, but not accepting the sole word of the Applicant (without corroborating evidence) where it would require the Delegate to attribute blame or fault to a third person.
For these reasons, I do not uphold particulars (a) and (b) of Ground two to the Grounds of Review.

Ground 2, particular (c)

The particular to this ground is as follows:
‘(c) The delegate said:
"Further, I find that the applicant has the capacity to engage state protection – as indicated by his statement from Police. This protection meets the requirements of durability, appropriate criminal law, reasonably effective police force and an impartial judicial required under s 5LA(2) of the Act." (CB 138.4)
This was unreasonable given that the Applicant's claims were precisely that he had on a number of occasions suffered threats, assault, torture, extortion, threat and fraud from various officers of the authorities of Sri Lanka, especially officers of the CID (CB 82-90), and the delegate had accepted the detention, and not rejected other claims to have suffered harm at the hands of the CID.’
In order to consider this particular, it is necessary to have regard to the finding that is the subject of the challenge by the Applicant, and the context in which it was made.
The finding that the Applicant has, inter alia, the capacity to engage state protection is a finding that was made by the Delegate in relation to the Applicant’s claims about his stolen credit card. The finding, and the paragraph in which it is set out, are reproduced below:
‘Given the period of time since this occurred, I find the chance of harm from this event to be remote. Further, I find that the applicant has the capacity to engage state protection – as indicated by his statement from Police. This protection meets the requirements of durability, appropriate criminal law, reasonably effective police force and an impartial judicial required under

s 5LA(2) of the Act.’
Two matters becomes apparent when the paragraph above is considered in context. First, the claim in relation to the Applicant fearing harm from events concerning his stolen credit card was dealt with by the Delegate finding that the chance of harm from the event was remote because of the period of time that had elapsed since the event occurred. This was the basis of the Delegate’s finding. The finding in relation to the Applicant’s capacity to engage state protection was, self-evidently from the paragraph set out above, an additional basis relied on by the Delegate to support his finding. Second, the finding in relation to the Applicant’s capacity to engage state protection was limited to events concerning his stolen credit card. It was not a finding that extended to matters beyond those concerning his stolen credit card.
For the above reasons, it cannot be said that the finding of the Delegate that the Applicant was capable of engaging state protection is unreasonable because the Applicant had made claims of threats, assault, torture, etc. by the CID. The finding by the Delegate about the Applicant’s capacity to engage state protection was limited to the claim he advanced about his credit card.
The question that then remains is whether the finding of the Delegate that the Applicant had the capacity to engage state protection is one that was reasonably open to it in circumstances where the Applicant claimed that the police had falsified his report, and that falsified report was not the subject of any detailed consideration by the Delegate. In my view, the finding made by the Delegate was one that was not reasonably open to it, given the Delegate did not deal with the claim in relation to the falsification of the police report. To the extent there was, however, any error by the Delegate, it was not one that was material. This is because, as noted above, the finding was an additional finding made by the Delegate. The principal reason why the Delegate did not accept that the Applicant was exposed to harm because of the events surrounding his credit card was because, as noted above, events had occurred a long time ago.
For all of these reasons, the complaint under this particular cannot be sustained.

Ground 2, particular (d)

The relevant particular is as follows:
‘(d) The delegate said,
"Overall, I have found that the applicant was of no interest to the Sri Lankan authorities for any reason when he left the country. Given the improved situation in the north of the country and noting the applicant does not have real or perceived links to the LTTE, I find the chance of him facing persecution for this reason is remote even if there is an ongoing military presence in the area." (CB 137-138)
This was unreasonable given that the delegate had not rejected the Applicant's claims that he had been questioned on a number of occasions about involvement with and work for the LTTE, and that the CID had come looking for him before and after he left the country.’
I have earlier in these reasons at paragraph [30] to [31] discussed the approach that the Delegate took to assessing the Applicant’s claims for refugee protection or protection under the complementary protection criteria. Further, at paragraphs [60] to [62] above, in relation to particular (f) of Ground one, I set out my views as to the manner in which the Delegate dealt with the Applicant’s claims in relation the CID looking for him before and after he left Sri Lanka. I adopt and rely on all of my earlier reasoning identified in this paragraph, in relation to this particular. Given those matters, it was open to the Delegate, in my view, to make the findings that he or she did. The Delegate’s reasons disclose a rational and intelligible justification for the conclusion that was ultimately reached. The conclusion was not one, in my view, that was unreasonable.
For these reasons, particular (d) is not upheld.

Ground 2, particular (e)

The relevant particular is as follows:
‘(e) The delegate said,
"I have also considered the most recent FFT report from May 2016. Without making any findings on the veracity of the claims cited in these reports, the accounts of their claims seem to indicate in nearly all cases there were accusations of specific LTTE involvement or links rather than people being singled out for being a failed Tamil asylum seeker.
The FFT further reports, that in the majority of cases the victims had an actual or suspected L TTE connection or links to separatist activities ...
I have found that the applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country.
…
In regards to the applicant's illegal departure, the applicant's identity is likely to be checked and he would be questioned at the airport on arrival. However, noting the applicant does not have a criminal background and was not of interest to the authorities when he left the country, I find he would not be exposed to harassment or any type of harm that would amount to serious harm on his return." (CB 139)
This was unreasonable given that the delegate had either accepted or had not rejected the Applicant's claims that he had been questioned on a number of occasions about involvement with and work for the LTTE, and that the CID had come looking for him both before and after he left the country.’
Earlier in these reasons at paragraphs [30] to [31], I discussed the approach that the Delegate took to assessing the Applicant’s claims for refugee protection or protection under the complementary protection criteria. Further, at paragraphs [64] to [66] above, in relation to particular (g) of Ground one, I set out my views as to the manner in which the Delegate dealt with issues relating to the Applicant’s return to Sri Lanka. I adopt and rely on all of my earlier reasoning identified in this paragraph, in relation to this particular.
When the above matters are considered, in my view, there was nothing unreasonable about the findings of the Delegate. The Delegate made specific findings in relation to the Applicant and whether he was of any interest to the LTTE because of any perceived link to them. The Delegate referred to specific information he had before him (extracted above) which dealt with the risk faced by former asylum seekers (including Tamils) who left illegally and returned, and concluded that there was no risk of harm. The findings made by the Delegate were open to be made. There was, in my view, an intelligible justification for the conclusions reached by the Delegate. The finding cannot be said to be unreasonable.
For all of the above reasons, Ground two of the Grounds of Review must be dismissed.

Ground three

This ground was not pressed by the Applicant during the hearing.

Ground four

The fourth ground of review in the Application is as follows:
‘The Minister by his delegate erred interpreting or applying the law, and thereby failed to exercise his jurisdiction, or erred in the exercise of his jurisdiction.
Particulars
(a) The Applicant refers to and repeats the particulars to Ground 3 of the application.
(b) The Minister's delegate ("the delegate") erred in determining that the Applicant is an "excluded fast track applicant" under section 5(1)(a)(iii) of the Act. (See Protection Visa Decision Record, Part 7, Court Book ("CB") 141 - 142)’
While there are two particulars to this ground of review, the Applicant abandoned particular (a). Accordingly, all that remains is particular (b).
This ground of review takes issue with the finding of the Delegate that the Applicant is an ‘excluded fast track review applicant’ as defined in s.5 of the Act. The significance of that conclusion is that there is no right to seek merits review under the Act of a decision to refuse to grant a protection visa to an excluded fast track review applicant.
In FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 (‘FMM17’), the Full Court of the Federal Court of Australia considered the application of the definition of ‘excluded fast track review applicant’ to an asylum seeker from Sri Lanka who had previously made unsuccessful claims for asylum in France. The appellant in that matter had been deported from France back to Sri Lanka following his claims being unsuccessful, before arriving by boat in Australia and making claims for asylum in this country.
In FMM17, the Full Court held that s.5(1)(a)(iii) of the Act is to be interpreted as applying even where new claims for protection have arisen after the determination of refugee status in another country, and even after the person has returned from the country of rejection to their own country before arriving in Australia. The Applicant accepted that FMM17 was binding upon this Court but sought to distinguish it. In short, the Applicant contended that, properly construed, s.5(1)(a)(iii) of the Act should be understood to limit the right of merits review to applicants who seek protection in Australia directly after rejection in another country. The Applicant contended the section ought not be construed to apply to persons, such as the Applicant, who after rejection in another country, have returned to their home country before embarking upon a new journey to Australia to claim protection. The Applicant further contended that the present matter should be distinguished from FMM17 because the reason he now seeks protection in Australia arises because of a situation which arose in Norway; namely his attendance at a protest at which he was photographed, which then led to questioning from the CID when he returned to Sri Lanka.
In my view, the decision in FMM17 applies to the present matter and I am required to follow it. Having regard to the definition in s.5 of the Act, one of the principal issues that emerges from the competing submissions is the meaning to be given to the phrase ‘has made a claim for protection’ in sub-s.(a)(iii) of the definition. In my view, that phrase should be given its ordinary meaning. It refers to a claim for protection, and not to facts or evidence raised in support of such an application for protection. Further, insofar as the Applicant submits that the claim now being advanced are different to those which arose in Norway, that submission should be rejected. The Full Court found that a person may be an ‘excluded fast track review applicant’ even where there is not an exact identity between the claim previously made in the third country and the claim advanced in Australia.
For all of the above reasons, ground four of the grounds of review must be dismissed.

Conclusion

The Application for review must be dismissed. No jurisdictional error was made.
Costs usually follow the event. I will award costs to the Minister of $7,467.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 4 December 2020