Evb17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 234
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EVB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 234
File number(s): MLG 2348 of 2017 Judgment of: JUDGE EGAN Date of judgment: 27 April 2022 Catchwords: MIGRATION – application for Safe Haven Enterprise Visa – Authority properly considered all evidence before it and made findings open to it based on such evidence – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 473CB, 5H(1), 5J, 36(2A) Cases cited: Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 25 March 2022 Date of hearing: 25 March 2022 Applicant: Self-Represented Litigant Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2348 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVB17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
27 APRIL 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Originating Application for Review filed on 1 November 2017 be dismissed.
3.The Applicant pay the First Respondents costs of and incidental to the Application for Review, fixed in the amount of $5,900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 6 September 2012.
On 20 November 2015, the applicant was invited to apply for a Temporary Protection (Subclass 785) Visa (TPV) or a Safe Haven Enterprise (Subclass 790) Visa (SHEV).
On 23 May 2016, the applicant applied for a SHEV.
On 1 March 2017, a delegate of the Minister refused to grant the applicant the visa. The matter was then referred to the Immigration Assessment Authority (the Authority) for review.
On 27 March 2017, the applicant’s agent provided a submission to the Authority.
On 27 September 2017, the Authority affirmed the decision of the delegate.
At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).
At [10] of its reasons, the Authority set out the applicant’s claims for protection as follows:
•“In 1984 the applicant was born in [place omitted], Northern Province.
•Between 1989 and 1992 the applicant and his family resided in India as refugees, and were also displaced within Sri Lanka on other occasions during the civil war.
•The Liberation tigers of Tamil Eelam (LTTE) occupied some of the applicant’s family farm land until 1995 when the SLA re-captured the applicant’s village.
•The applicant’s paternal uncle was a karate master who had a senior role in the LTTE. The applicant had not seen his uncle since 1995.
•Just prior to the end of the civil war in May 2009, the applicant’s father and one of his four older sisters, Sister S were caught up in a roadside explosion. The applicant’s father was wounded and the SLA detained Sister S and other bystanders for questioning, on suspicion they were supporting the LTTE. Sister S has not been [seen] since then.
•The applicant’s family made enquiries about Sister S with the United Nations High Commission for Refugees (UNHCR), the International Committee of the Red Cross (ICRC), and local community representatives.
•Shortly after the Civil war ended the SLA detained the applicant at their camp, where they tied him up naked, sexually assaulted him, and beat him with a cement filled pipe until he passed out. After three days, believing the applicant was dead, the SLA dumped his body near the road.
•The applicant went into hiding, mainly staying with his sisters during the day and at night sleeping at neighbours’ houses. He obtained a passport and tried to leave Sri Lanka but the smuggler cheated him.
•The police came to the applicant’s house twice and interrogated his mother about the nature of her enquiries regarding Sister S. The applicant’s mother and Sister R were summoned to the SLA camp, and badly beaten. Sister R now wears dentures as a result.
•After this incident the applicant’s father, fearing he would be tortured and killed, went into hiding.
•The SLA then came to the applicant’s house, damaged their property and burnt photographs.
•In 2012 the Criminal Investigation Department (CID) came to the applicant’s house to summon him to their office, however he was at the temple. As a result the applicant’s mother also decided to go into hiding at one of her daughter’s houses. By the time the applicant left Sri Lanka no one was living in their family home.
•In August 2012 the applicant departed Sri Lanka illegally by boat.
•Since the applicant’s arrival in Australia the SLA and CID have visited his parents’ house on a number of occasions and asked for the applicant, assaulted his mother, made threats and stated Sister S is dead.
•In 2015 the CID threw the applicant’s maternal uncle down a well and killed him because they believed he was with the LTTE.
•In 2016 the applicant’s brother sought asylum in Hungary because the authorities were questioning him about the applicant’s whereabouts.
•An acquaintance of the applicant, who also came to Australia by boat has since returned to Sri Lanka and is missing. The applicant believes he has been tortured and killed.
•The applicant fears the Sri Lankan authorities will detain, interrogate, torture or kill him because: he is a young, unmarried Tamil male from the North; he is suspected of LTTE links, he has familial LTTE links, his family made enquiries with humanitarian organisations, and in 2012 he departed Sri Lanka illegally and sought asylum in Australia.
At [11] and [12] of its reasons, the Authority respectively recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
At [56] of its reasons, the Authority recorded what constituted significant harm under s. 36(2A) of the Act.
On 1 November 2017, the applicant’s lawyers filed an Originating Application for Review of the decision of the Authority. The Grounds of the Application for Review were as follows:
‘Grounds of application
1. The Authority fell into jurisdictional error in that it was unreasonable or made findings with no logically probative evidence.
Particulars
(a) The Authority was unreasonable, relied on an irrelevant consideration or had no logically probative evidence from which it could lawfully have made critical findings for its assessment of the matter, namely finding that the applicant does not face a real chance of experiencing fear or psychological harm on account of his 2009 sexual assault should he return to Sri Lanka. The authority failed to conduct a proper assessment of the applicant's risk of suffering serious harm upon return to Sri Lanka on account of his subjective fear of the Sri Lank.an authorities, merely relying on the irrelevant consideration that there was no supporting medical evidence to substantiate his claim, despite having accepted that the sexual assault took place and he holds a subjective fear of being assaulted again by the authorities:
(i)"I have accepted the applicant's claim to have been seriously mistreated, and sexually assaulted during his three day detention in 2009, and I accept he has a subjective fear of the Sri Lankan authorities as a result.
(Decision, [42], emphasis added)
(ii) "On the evidence I am not satisfied the applicant faces a real chance of experiencing fear or psychological harm at a level amounting to serious harm, on account of his 2009 sexual assault should he return to Sri Lanka. There is no supporting medical evidence before me to substantiate such a claim."
(Decision [43], emphasis added)
2. The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.
Particulars
(a) The Authority failed to have regard to information before it in that it failed to cumulatively consider all of the integers of the applicant's claim. The Authority's cumulative assessment at the end of its reasons does not expressly deal with the applicant's sexual assault or assess the possibility that, when considered cumulatively, including his sexual assault, the risks to the applicant might become significant.
(i) I am not satisfied the Sri Lankan authorities will impute the applicant to have a pro-LTTE political opinion because of his status as a young unmarried Tamil male, his origins from the North, his familial LTTE links, the LTTE's occupation of his family land. Based on the applicant's personal circumstances, and the greatly improved country information, I am not satisfied the Sri Lankan authorities have an adverse interest in him because of their previous interactions with him or his family, or his family's interactions with humanitarian organisations regarding Sister S. Overall I find the applicant does not face a real chance of harm for any of these reasons, should he return to Sri Lanka.
(Decision [4], emphasis added)’
Consideration of Grounds of Review
Ground 1 of the Application for Review was a claim that the Authority had fallen into jurisdictional error in that it was said that at [42] – [43] of its reasons it made findings which were legally unreasonable, or which were based upon a lack of ‘logically probative evidence’. It was further asserted that the Authority had relied on irrelevant considerations.
Paragraphs [42] – [43] of the reasons of the Authority were as follows:
‘[42] I have accepted the applicant’s claim to have been seriously mistreated, and sexually assaulted during his three day detention in 2009, and I accept he has a subjective fear of the Sri Lankan authorities as a result. However I have found his claim to have been of ongoing interest to the authorities, and to have been in hiding for three years after his detention, not to be credible. While I accept the applicant made an attempt to depart Sri Lanka in 2009 but was cheated by a smuggler, his employment history notes indicates he continued to work as a farm hand for the next three years, and was not in hiding.
[43] On the evidence I am not satisfied the applicant faces a real chance of experiencing fear or psychological harm at a level amounting to serious harm, on account of his 2009 sexual assault should he return to Sri Lanka. There is no supporting medical evidence before me to substantiate such a claim. Nor am I satisfied that the applicant is a refugee on the basis of the severity of past harm, as argued in the submission on the basis of UNHCR guidelines concerning the cessation provision in the Refugees Convention, which does not form part of the criteria in s.5H.’
First, at [3] – [9] of its reasons, the Authority put into context the claims of the applicant (as made in submissions to the Department and to the Authority) as compared with relevant country information, as follows:
‘[3] On 27 March 2017 the IAA received a submission on behalf of the applicant (‘the IAA submission’). The IAA submission reiterates claims made to the delegate that are contained in the review material. It also contains arguments in relation to issues before the delegate.
[4]At the end of the SHEV interview the applicant informed the delegate that while in the custody of the Sri Lankan Army (SLA) in 2009 he had been sexually assaulted. The IAA submission claims that should the applicant return to Sri Lanka, he would be living in fear of suffering a further sexual assault from the authorities, amounting to significant harm, and that he continues to be a refugee on the basis of this past harm. While the matter of the applicant’s 2009 sexual assault was before the delegate, his fear of future harm arising from this incident, was not and is new information.
[5] The IAA submission puts forward that the applicant, who was unrepresented at his SHEV interview, was ashamed of disclosing to matter of his 2009 sexual assault to the delegate; and that this explains the late inclusion of this claim at the SHEV interview, as well as his inability to express his fear of similar harm occurring in the future. I am satisfied that the applicant could not have provided this new information before the delegate’s decision, due to the sensitive nature this claim and the timing with which he raised it. I am satisfied exceptional circumstances exist to consider the new information regarding the applicant’s fear of future harm as the result of significant psychological distress.
[6]The IAA submission also contains an excerpt from an International Center for Transitional Justice report, ‘When No One Calls It Rape: Addressing Sexual Violence and Against Men and Boys’, dated 12 July 2016.
[7] While the report was published prior to the SHEV interview, for the reasons discussed above, I accept the applicant was not in a position to have provided the report before the delegate’s decision. For the same reasons I am satisfied exceptional circumstances exist to justify its consideration.
[8]The IAA submission also contains an excerpt from an unnamed Human Rights Watch report, dated 20 February 2017. The news article appears to be publicly available material that predates the delegate’s decision. The excerpt concerns the Sri Lankan government’s failure to repeal the Prevention of Terrorism Act, and the Sri Lankan authorities’ use of torture on detainees; however the IAA submission does not explain why, what appears to be general country information, can be regarded as credible personal information. At the outset of the SHEV interview the delegate advised that applicant that the IAA is a limited form of review and can only consider new information in exceptional circumstances. While the applicant was unrepresented at his SHEV interview, he confirmed he understood this information. I am not satisfied this new information could not have been provided before the delegate’s decision, or that it constitutes credible personal information. Nor am I satisfied exceptional circumstances exist to justify its consideration.
[9] I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. The delegate relied on the then current 18 December 2015 DFAT report for Sri Lanka. I am satisfied that there are exceptional circumstances to justify considering this new information.’
At [18] of its reasons, the Authority accepted that the applicant had been detained by the SLA (Sri Lankan Army) after the end of the war in 2009, and that he had been seriously mistreated. The Authority accepted as credible the applicant’s claims that he had been subjected to sexual torture, and that he had been left for dead on the side of the road. However, the Authority also found that the applicant’s claims regarding his interactions with the authorities were unreliable. At [37] – [39] inclusive of its reasons, the Authority found as follows:
‘[37] In terms of real or perceived links to the LTTE, I note the UNHCR identified at that time, amongst other risk profiles, those with familial links to the LTTE as potentially in need of protection.8 I accept that in 1995 the Sri Lankan authorities were aware that the LTTE had a presence on one section of the applicant’s family land, and that during his three day detention in 2009 the applicant was interrogated as to whether he, or his sisters, had any information on the LTTE and tortured. I accept Sister S was taken away, along with other civilians, following an explosion in 2009 and has not been seen since. However, with the exception of the applicant’s three day detention in 2009, I consider his evidence regarding his interactions with the authorities to be unreliable and have found his claims that from 2009 the authorities repeatedly targeted him and his family, not to be credible.
[38] I accept the applicant’s claim that his uncle was a karate master, who held a senior position in the LTTE, and some of his cousins had LTTE involvement. I accept the applicant’s evidence that he has not seen his uncle since 1995 and that his cousins are also missing. The applicant has not claimed his uncle’s LTTE involvement was raised during his 2009 detention, or indeed that there have been any adverse consequences for the applicant for any reason related to his familial LTTE links. In the applicant’s written SHEV statement he claimed that in 2015 the CID threw one of his uncles down a well and killed him because they believed he was with the LTTE. I am prepared to accept one of the applicant’s uncles died in 2015 when he fell down a well. However, on the limited information before me, I do not accept the CID were responsible for pushing the applicant’s uncle into the well.
[39] The 2012 UNHCR Guidelines also identified persons seeking justice for human rights violations, and their family members, as potentially in need of protection.9 The country information cited above indicates that the chaos and mass displacement of civilians during the final stages of the civil war in the North, resulted in thousands of enquiries being lodged regarding missing persons, including those who had been involved with the LTTE. While I accept that Sister S, along with other civilians, was last seen in the custody of the authorities, for the reasons discussed above I am not satisfied the applicant has any sort of profile arising from this.’
At [43] of its reasons, the Authority was considering whether the applicant would face a real chance of experiencing fear or psychological harm (at a level amounting to serious harm) on account of the 2009 sexual assault should he return to Sri Lanka. The Authority noted that there was no medical evidence supportive of any such claim. The Authority also found that the applicant did not meet the relevant refugee criteria based upon the severity of past harm suffered by him. At [44] of its reasons, the Authority relied upon country information which suggested improved conditions in Sri Lanka when finding that the Sri Lankan authorities would not impute to the applicant any pro-LTTE political opinion by reason of any of his personal characteristics. It found as follows:
‘[44] I am not satisfied the Sri Lankan authorities will impute the applicant to have a pro-LTTE political opinion because of his status as a young unmarried Tamil male, his origins from the North, his familial LTTE links, the LTTE’s occupation of his family land. Based on the applicant’s personal circumstances, and the greatly improved country information, I am not satisfied the Sri Lankan authorities have an adverse interest in him because of their previous interactions with him or his family, or his family’s interactions with humanitarian organisations regarding Sister S. Overall I find the applicant does not face a real chance of harm for any of these reasons, should he return to Sri Lanka.’
The Authority had accordingly dealt with the applicant’s claims that by reason of his past mistreatment it would ‘be a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that he would suffer significant harm’. [1] There was no basis for the claim that the findings of the Authority were legally unreasonable or had no sound evidentiary basis. The country information relied upon by the authority was in itself sufficient to found a basis for its findings, quite apart from the inconsistencies found by the Authority to exist in the applicant’s claims.
[1] Exhibit 1 - Court Book (CB) p. 186
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
When holding that the test for legal unreasonableness is “necessarily stringent”, Kiefel CJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] – [11] said as follows:
‘[10]In the joint judgement in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in the legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an interference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.’
The Authority noted that the applicant had lived in Sri Lanka for three years following the sexual mistreatment. It further found that there had been a considerable passage of time since those events, and that the content of country information was not supportive of the applicant’s claims. The Authority made findings which were open to it on the evidence before it.
Ground 1 is without merit and is dismissed.
Ground 2 was a claim that the Authority had fallen into jurisdictional error by failing to have regard to a relevant consideration. It was claimed that the Authority had failed to consider all of the integers of the applicant’s claim, and that the Authority’s assessment at the end of its reasons did not expressly deal with the applicant’s sexual assault, or assess the possibility that the risks attendant upon the applicant’s return to Sri Lanka could become significant. There is no merit to such claim.
First, the Authority at [44] of its reasons was considering the applicant’s claims cumulatively having regard to evidence of mistreatment of the applicant which it accepted, the country information before it which suggested that there had been an improvement in conditions in Sri Lanka for individuals such as the applicant, as well as having regard to its findings that the applicant would not face a real chance of experiencing fear or psychological harm at a level amounting to serious harm as set out in [43] of its reasons. Further, when dealing with the question of whether the applicant would be likely to suffer significant harm if returned to Sri Lanka, at [56] – [62] of its reasons the Authority found as follows:
‘[56] Under s.36(2A), a person will suffer ‘significant harm’ if:
·the person will be arbitrarily deprived of his or her life
·the death penalty will be carried out on the person
·the person will be subjected to torture
·the person will be subjected to cruel or inhuman treatment or punishment, or
·the person will be subjected to degrading treatment or punishment.
[57] I accept the applicant’s extended family had LTTE involvement and that prior to 1995 the LTTE had a presence on the applicant’s family farmland. I accept in 2009 the Sri Lankan authorities interrogated the applicant and seriously mistreated, and sexually assaulted, him. I accept in 2009 the Sri Lankan authorities also seriously mistreated the applicant’s family for enquiring about Sister S. However I not accepted that the applicant, as an asylum seeker, and a young unmarried Tamil male from a former LTTE-active area in the North with these experiences, would face a real chance of harm in relation to these reasons upon return. For the same reasons I also find there is not a real risk he will suffer significant harm.
[58] On the evidence I am not satisfied that; there is a real risk the applicant will suffer ongoing fear or psychological distress relating to his 2009 sexual assault, at level amounting to significant harm as defined in ss.36(2A) and 5(1).
[59] I have accepted the applicant would be returning to Sri Lanka as an asylum seeker who left the country by boat, and will be subject to a process under the I&E Act. Country information cited above indicates if he pleads guilty he will be fined, which he can pay by instalment. If he pleads not guilty he will be granted bail immediately on the basis of personal surety, or with a family member acting as a guarantor, pending a hearing. I accept that in any of these scenarios he may be held in detention for a short period. On the evidence before me I am satisfied the applicant, who was an ordinary passenger on a people smuggling venture, does not face a real risk of a custodial sentence.
[60] DFAT has reported that detainees are not subject to mistreatment during processing at the airport. The applicant may be required to spend approximately 24 hours in police custody at the airport, or possibly a nearby jail, to resolve his offences under the I&E Act. Country information indicates that Sri Lankan prison conditions do not meet international standards due to old infrastructure, gross overcrowding, and a shortage of sanitary and other basic facilities.17 I am not satisfied this, or the imposition of a fine, would amount to the arbitrary deprivation of life, the death penalty or torture. I am also not satisfied there is an intention to pain or suffering, severe pain or suffering, whether physical or mental, or cause extreme humiliation, as required in the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment. I find there is not real risk of significant harm on this basis.
[61] While I accept the applicant will be required to pay a fine, I am not satisfied the imposition of a fine amounts to significant harm. I find the fine and/or the potential of being held in detention for a short period and/or any other treatment he is liable to receive under the I&E Act, when considered together, does not amount to the death penalty, arbitrary deprivation of life, torture, pain or suffering that is cruel or inhuman in nature, severe pain or suffering, or extreme humiliation. I am not satisfied payment of the fine, questioning and any brief period of detention amounts to significant harm as defined under ss.36(2A) and 5 of the Act.
[62] I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.’
The Authority dealt with the question as to whether the applicant would have any profile which would bring him to the attention of the authorities, finding at [44] that the Sri Lankan authorities would not have any adverse interest in him by reason of their previous interactions with him.
The Authority was not required to further assess the applicant’s claims in a cumulative way in any event. In Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32] – [34] inclusive, Gilmour, Markovic and O’Callaghan JJ said as follows:
‘[32] Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appealable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123: 140 ALD 78 at [135] – [136] W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21] Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].
[33] Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:
Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]. The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 139 [7]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan vMinister for Immigration and Citizenship [2000] FCA 1478 at [31]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21].
[34] In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view that the primary judge was wrong to hold otherwise.’
Having accepted the claim about the applicant’s earlier sexual mistreatment, the Authority was not, as a matter of inexorable logic, required to further cumulatively examine that issue. There is no merit to Ground 2.
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 30 March 2022
0
9
0