EVD19 v Minister for Immigration
[2020] FCCA 2409
•31 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EVD19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2409 |
| Catchwords: MIGRATION – Protection visa – decision of Immigration Assessment Authority – weight given to country information – whether the IAA overlooked claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 EII17 v Minister for Immigration and Border Protection [2018] FCA 1863 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | EVD19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 476 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 August 2020 |
| Date of Last Submission: | 27 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 31 August 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 476 of 2019
| EVD19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 3 November 2012 (Court Book (“CB”) 430).
On 14 January 2016, the applicant was advised that the first respondent (the “Minister”) had lifted the bar under s.46A of the Migration Act 1958 (Cth) (the “Act”). This allowed the applicant to lodge an application for specific types of protection visas.
On 4 March 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 33-330). Numerous documents were provided in support of that application.
The applicant’s claims for protection were summarised by a Ministerial delegate as follows (CB 432):
The applicant fears being arrested, tortured or arbitrarily deprived of his life. The applicant fears harm from the Sri Lankan Army (SLA), Criminal Investigations Department (CID) or Sri Lankan paramilitary groups for reasons of being a male Tamil, his Imputed political opinion (familial links to the LTTE; Imputed support of LTTE), being a Failed asylum seeker and his illegal departure from Sri Lanka. He also claims to fear harm by locals for religious reasons.
The applicant attended an interview before a Ministerial delegate on 8 May 2018 (CB 403-421).
On 20 July 2018, a delegate refused to grant the applicant the visa (CB 425-449). The delegate was not satisfied that the applicant faced a real chance or a real risk of serious or significant harm if he returned to Sri Lanka.
The applicant’s application was referred to the Immigration Assessment Authority (the “IAA”) on 25 July 2018 (CB 451-465).
On 2 November 2018, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 474-492).
On 15 November 2018, the applicant sought judicial review of the IAA’s decision. On 6 September 2019, a Judge of this Court made orders remitting the applicant’s application for rehearing at the IAA (CB 493-494). The Judge found that the IAA had fallen into jurisdictional error because it had failed to consider one of the applicant’s claims.
On 27 September 2019, the IAA advised the applicant that the matter was now being reconsidered and that he should “act quickly” (CB 495-497).
On 30 October 2019, the IAA again affirmed the delegate’s decision (CB 501-521).
On 4 December 2019, the applicant filed an application for judicial review of the IAA’s decision dated 30 October 2019 in this Court pursuant to s.476 of the Act.
To succeed in this Court, the applicant must demonstrate that the IAA has fallen into jurisdictional error.
The IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act. That section provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision dated 30 October 2019 is 21 pages long and spans 65 paragraphs.
The IAA began its decision by providing an outline of the procedural history relevant to the visa. It noted that the matter had been remitted from the Federal Circuit Court for redetermination and that the IAA was not bound by the previous IAA’s findings or the delegate’s findings (at [1]-[3]).
After confirming that it had had regard to the material referred by the Secretary pursuant to s.473CB of the Act (at [4]), the IAA made specific reference to the material before it as follows:
5.I note that as part of his SHEV application, this appliance included approximately 185 pages of news articles and other country information submitted in support of his claims. For the avoidance of any doubt, I have considered this information. I note it was argued in his Protection Visa Interview that the authorities in Sri Lanka enforced a media blackout in the Tamil areas of Sri Lanka and the true picture of what is happening in those parts of the country is not accurately known, even by the Tamils living there. He further argued that the Sri Lankan Government was engaged in secretly killing former LTTE members. I found this this entire line of argument conspiratorial and unpersuasive and I note in the context of this assertion that the applicant himself submitted a large volume reporting about events in the Tamil parts of Sri Lanka, many from Tamil news agencies, casting significant doubt upon this entire line of argument.
6.Finally, I observe that in the materials referred by the Department is a four-page document from what appears to be a Facebook account linked to this applicant. I have reviewed the document and I am not able to determine any relevance between its contents and my consideration of the applicant’s claims. The delegate did not put this information to the applicant during his Protection Visa Interview or at any other time and it is not mentioned the delegate’s decision. I am satisfied the information in this document is not material to this review and is not adverse to the applicant. I have not given it any weight.
The IAA then provided a comprehensive summary of the applicant’s claims (at [7]).
The IAA accepted that the applicant was a Sri Lankan Tamil from the Northern Province who practises the Catholic faith (at [8]).
In considering the applicant’s claims for protection, which was based on the fact that he was a fisherman and was attacked by the navy, the IAA found as follows:
9.The applicant has asserted that in Sri Lanka he was a fisherman. He says that he was employed as a fisherman on a boat crewed by his uncle and his father between 2009 and his departure for Australia in 2012. As evidence, he has provided copies of a Sri Lankan Fishing Permit in his name, and a letter from a Sri Lankan Fishing Cooperative. In light of this evidence, I accept that the applicant worked as a fisherman in Sri Lanka. However, despite his claim that he commence working as a fisherman in 2009, I note that both the letter from the Fishing Cooperative and the applicant’s Fishing licence suggest he only worked as a fisherman between mid-2011, and mid-2012, casting some doubt on the scope of the applicant’s claims. When asked about why his documents did not say he had been fishing since 2009, the applicant indicated that this was the first fishing pass issued to him, and that he did not require one earlier since the LTTE was in control of the area, and only after the Government took control did fishing licences begin to be issued.
10.Country information before me indicates that fishing passes were issued in Sri Lanka during the conflict by the Sri Lankan Navy (SLN) and afterwards by the Department of Fisheries and that they were required for fisherman in the area1. UN reporting from 2012 indicates that fishermen were required to show passes daily in order to be allowed to fish and were only permitted to fish close to the shore. The LTTE lost control of Mannar district in 2008 and were finally defeated in May 2009. It is not clear why the applicant would not have had a fishing pass between 2009 and 2011 if he was working as a fisherman during this period. I have some doubts about this assertion but I note that the applicant did say that he initially started to work with his father and uncle on an informal basis and so I am prepared to accept that he was working as a fisherman between 2009 and 2012. The applicant says that he fished on a daily basis during this period and that he and his father and uncle were assaulted on a daily basis by the SLN because he fished to close to the Indian border. I found that this claim was very vague. According to DFAT in 2012, it was not aware of any reports that Sri Lankan Tamils (or any other ethnic groupings) were mistreated if they were caught illegally fishing. The country information before about Sri Lankan fishermen during this period, including country information submitted by the applicant, does not support his allegations that fishermen were being physically assaulted by the SLN after the war. Considering the country information and the applicant’s vague evidence, which I found unconvincing, I am not satisfied the applicant experienced repeated assault by the SLN while working as a fisherman.
In relation to the applicant’s claims to have supported the Liberation Tigers of Tamil Eelam (the “LTTE”) during the war, the IAA:
a)found the applicant’s evidence to be unconvincing. The IAA noted that this claim was not raised until the interview with the delegate, the applicant was unaware of the particular details, that the applicant was a schoolboy at the time he says the assistance was provided and that the applicant himself denied having provided this support (at [11]-[12]); and
b)was not satisfied that the applicant was telling the truth and did not accept he or his family provided support to the LTTE. The IAA concluded that the applicant had exaggerated his accounts in this regard in order to portray his family as having close links to the LTTE (at [13]).
The IAA then addressed the applicant’s post-war assistance claims as follows:
Post war Transport of LTTE, Cousin/Brother, First Cousin
14.In his SHEV application, the applicant claimed that in late 2010 he, his father and uncle “gave transportation to LTTE cadets, who had been fighting the Sri Lankan Government forces and who were now in hiding and trying to escape to India”. He said that he and his family had been forced to provide this support. He said that in early 2012, the Sri Lankan authorities became aware of this assistance after an unknown person reported the activity to the authorities. He says that afterwards he, his father and his uncle were detained by the CID. In his SHEV application, the applicant said that he was detained once, interrogated and mistreated. At this time, his uncle was taken to Colombo and has not been seen since. He said that while he and his father were detained, his mother lodged a complaint to the SLHRC and sought assistance from the local village headman, and a local Catholic Priest. These men approached the local CID Commander and arranged for the applicant and his father to be released. He says that they were only released on the condition that they agreed to return to custody if required by the CID. The SHEV application goes on to state that several days after his release, the CID visited his home looking for him, and finding him absent, detained his Cousin/Brother instead. His SHEV application indicates that after several days of detention and mistreatment, his Cousin/Brother was released, only to die several days later as a result of injuries sustained during his detention.
15.After this, the applicant went into hiding in Jaffna, where he stayed with unspecified relatives. While he was in Jaffna, another cousin (the applicant’s First Cousin) was detained by the Sri Lankan authorities. In August 2013, (after the applicant had arrived in Australia) this Cousin’s body was found and he is presumed to have been killed by the authorities.
16.The applicant has submitted a range of documents which he says support his claims. These include:
•A copy of a compliant acknowledgement to the SLHRC (the SLHRC receipt).
•A letter from the Parish Priest of the St Lawrence Church dated 10 December 2012 (the church letter.
•A letter from a former Parish Priest in the applicant’s village who was the Director of a drug rehabilitation clinic in a nearby village (the Rehabilitation Clinic letter).
•A letter from the President of the Citizens Committee of Mannar District (the Citizens Committee letter).
17.Country information before me indicates that the authorities in Sri Lanka did does indicated that during the war, the Sri Lankan security forces cold use ethnicity as a proxy for support for the LTTE, since the organisation was a Tamil movement. Furthermore, there are many credible accounts about the mistreatment of persons by the Sri Lankan security forces during the period. Security forces could be heavy handed and violent. Family links to the LTTE could lead to a person coming to the interest of the authorities in Sri Lanka.
The IAA identified a number of “problems” with the applicant’s account and highlighted a number of inconsistencies in the applicant’s evidence as provided in the visa application and before the delegate (at [18]-[19]).
The IAA set out the concerns it had with the supporting documents as follows:
20.I have reviewed the evidence the applicant provided to the Department in the form of letters and documents. I have concerns about much of the content of this evidence. In particular I note that:
• The SLHRC receipt submitted by the applicant was submitted by Mr KA1, and related to a compliant to the commission from January 2009. On its face, this document does not appear to be related to the applicant’s case, and is not the compliant that he says his mother lodged in 2012. I give it no weight as evidence of that this applicant was ever sought or detained by the authorities in Sri Lanka.
• The church letter indicates that the applicant’s uncle, a fisherman, was detained in March 2012 with “three other fisherman”. I note that the church letter does not indicate that the applicant was detained at this time as the applicant claims. The Church letter does indicate that a cousin of the applicant (CA1) had been detained in 2009, and had subsequently died in India on 11 May 2012. The church letter also asserts that the Sri Lanka authorities “from Colombo” sought the applicant. This letter is gives some weight to the applicant’s claims that he was sought at one time by the by the authorities but that he evaded them by hiding. I note that the church letter also indicates that his uncle and three other men had been arrested in March 2012. It does not say that the applicant had been arrested, nor does it indicate that the arrest of his uncle was in any way related to the LTTE. I note that when the delegate indicated to the applicant that he letter indicated that three other men had been arrested with his uncle, the applicant explained that the three other men where his uncle, his father and himself. But this is not what the letter says; rather it uses terms which indicate that the applicant’s uncle had been arrested with three other men, not the applicant or his father. I give it no weight as evidence of that this applicant was detained by the authorities in Sri Lanka. I am prepared to accept that there was an attempt to locate and question the applicant in relation to his uncle’s arrest, but to my mind the letter does not support any claim that he applicant himself was sought for arrest.
• The Rehabilitation Clinic letter is undated but it describes the applicant’s travel to Australia as recent, so I conclude it was written around the same time as the Church letter. The Rehabilitation Clinic letter also indicates that in March 2012, the applicant’s uncle, along with three other men, were arrested. The letter also indicates that the applicant himself was sought for inquiries related to his uncle’s arrest. This letter seems to confirm that the applicant himself was not arrested at this time and that he was only sought in relation to his uncle’s activities. This letter also indicates that he had hid from the authorities in order to avoid being questioned. I give it no weight as evidence of that this applicant was detained by the authorities in Sri Lanka. As with the the Church letter, I am prepared to accept that there was an attempt to locate and question the applicant in relation to his uncle’s arrest, but to my mind the letter does not support any claim that he applicant himself was sought for arrest.
• The Citizens Committee letter is dated 20 December 2012. It recounts a complaint lodged by the applicant’s mother to the Citizens Committee of Mannar about the arrest of the applicant’s uncle, and three other fisherman who were arrested on 3 April 2012. It further reports that the authorities sought to question the applicant. I give it no weight as evidence of that this applicant was detained by the authorities in Sri Lanka. As with the Church letter, I am prepared to accept that there was an attempt to locate and question the applicant in relation to his uncle’s arrest, but to my mind the letter does not support any claim that he applicant himself was sought for arrest.
21. Overall, the letters and documents submitted by the applicant do not support his claims. I accept that that the applicant’s uncle was detained around March/April 2012 along with three other fishermen. However, these materials do not support the applicant’s assertion that he or his fathers were detained at this time and the materials submitted by the applicant all refer to three other fishermen. Rather, the three letters all indicate that the applicant was not detained at this time. These three accounts all come from persons known to the applicant, including his mother, his Parish Priest and a former Parish priest. These materials cast considerable doubt on the applicant’s claims. When asked by the delegate who the three ‘other fisherman’ were who were arrested, the applicant said that the three fisherman where himself, his father and his uncle, but this is not what his documents say. I found his answer unconvincing.
(Without alteration)
The IAA then noted the applicant’s evidence about how he managed to transport the LTTE and determined that there were difficulties in accepting the applicant’s account. It was noted that the applicant was asked how he and his father and uncle had managed to transport so many former LTTE to India without the authorities finding out and the applicant had said, “rather unconvincingly”, that “they did not notice”. The IAA noted, however, that, at other times during his visa application process, the applicant had advanced an account which emphasised that the authorities in the Mannar area employed oppressive coastal surveillance throughout his time as a fisherman. To the IAA, this dichotomy was never adequately resolved by the applicant (at [22]).
The IAA placed no weight on a court document that the applicant had provided in support of his claims as it was not explained who the court document related to and how it related to the applicant’s case overall (at [23]).
The IAA then found:
24. On the whole, I am not persuaded that this applicant has been truthful about what happened to him in Sri Lanka. The evidence before me does not support the applicant’s principal claims. The applicant’s principal claims all revolve around a claimed association between his family and the LTTE. Country information before indicates that in Sri Lanka during this period, the Sri Lankan security forces had wide powers to detain and investigate any person linked to the LTTE. Such persons were often detained and held without charge for lengthy periods. Persons with links to the LTTE were forced to undergo a lengthy period of compulsory rehabilitation and re-education in Government camps. If the applicant, his father or uncle were seriously suspected of having the LTTE links that he claims the evidence indicates that he would have been detained and rehabilitated at length. Nothing like this happened to the applicant.
25. I accept that in early 2012, the applicant’s uncle was arrested by the authorities in Sri Lanka. However, I do not accept that the applicant, or his father were arrested at this time, and this element of his claims appears to be a complete fabrication. I am prepared to accept that around this time, the Sri Lankan authorities sought to interview the applicant, but I conclude that this related to the applicant’s uncle, not to the applicant himself. I do not accept that the applicant, his father or his uncle were ever suspected of being members, supporters or sympathisers of the LTTE. I note in this context that the applicant has not indicated that his father who remains in Mannar, and who also crewed the boat with his uncle continues to face problems associated with the uncles 2012 arrest. I am willing to accept that the applicant had a First cousin (CA1) who was arrested around 2009 and who was subsequently imprisoned for more than a year. However, on the evidence before me this person was released in 2010. The applicant has not satisfied me that his other claims are true. I do not accept that he or his father were ever detained and tortured. I do not accept that his Brother/Cousin was detained, tortured and died as a result of his injuries in 2012. I do not accept that the applicant’s first cousin died in 2013. I do not accept that his uncle has not been heard from since his arrest in 2012. I conclude that the applicant has fabricated these aspects of his claim for the purposes of improving his chances of obtaining a protection visa.
26. As I have noted above, in several aspects there is a clear and distinct shift between the applicant’s claims as outlined in his 2016 SHEV application and those from his 2018 Protection Visa Interview. In general, these shifts tended to strengthen the applicant’s claims. Broadly, they suggest that the applicant’s family had a much deeper and richer connection to the LTTE than the claims advanced in the earlier SHEV application. Above, I have noted that these claims were largely unconvincing. I conclude that the shifting claims advanced by the applicant were a deliberate attempt to enhance his claims for protection.
The IAA then addressed the applicant’s claim that an uncle had been arrested and was later found dead as follows:
27.During his 2018 Protection Visa Interview, the applicant asserted that in 2013, after he came to Australia, his father’s brother (U2) was detained by the authorities. Later U2’s dead body was found in the ocean. The applicant did not provide any further details in relation to this claim. The applicant has not provided any independent corroborative evidence to support his claim about U2.
The IAA found the evidence provided in this regard to be vague and was not satisfied that the claim that the uncle had been detained and killed was genuine (at [28]).
Having found that the applicant and his family did not have links to the LTTE and were never of interest to the authorities (as the applicant had claimed), the IAA was left to consider whether the applicant faced a real chance or real risk of significant harm as a young Tamil male fisherman from the north of Sri Lanka, as a failed asylum seeker, and as a result of a conflict with Muslims from a neighbouring village (at [32]).
In relation to whether the applicant would face harm as a young Tamil male fisherman from the north, the IAA extensively summarised the country information (at [34]-[35] and [40]-[43]). The IAA referred to its findings that the applicant and his family had never provided support to the LTTE (at [37] and [39]) and noted other aspects of the applicant’s evidence – including that he had not indicated he was aware of anyone who continues to reside in Sri Lanka that suffers from any ongoing harm for being Tamil or for residing in the Northern Province (at [36]) or that he had participated in or intended to participate in any political activities (at [38]).
At [44], the IAA concluded:
After careful consideration, I am not persuaded that the applicant would face a real chance of harm arising from his status as a Tamil from the North, his ethnicity, his past employment as a fisherman or any future employment in that field, or his age. I do not accept that the applicant would be imputed with anti-Government or pro-LTTE political opinion. I am not satisfied that the applicant has a well-founded fear of persecution based upon his race, age, residence in the north, or work as a fisherman.
The IAA then considered the applicant’s claim to fear harm from his Muslim neighbours. The IAA noted that this was a claim that was made “in passing” at the delegate’s interview and appeared, on the information provided, to be a “one-off” event (at [45]-[46]).
The IAA then noted country information on religious practise in Sri Lanka (at [47]). The IAA accepted that the applicant had fought with Muslims in 2010 or 2011 but noted that this appeared to be no more than a brief altercation. Further, the applicant had not claimed that his family suffered any issues and found that the applicant’s own evidence was that this was a “one-off episode” (at [48]).
The IAA concluded as follows (at [49]):
After careful consideration of this claim, I am not satisfied that the applicant’s fears about harm from Muslims are warranted. Given the passage of time, the lack of consequences for other family in his area and the isolated nature of this event, I do not accept that the applicant, a Christian, would face a real chance of harm from the Muslim population generally or that the applicant specifically would face a real chance of harm from Muslims in neighbouring villages.
The IAA then considered whether the applicant would face harm as a result of being a failed asylum seeker and because of his unlawful departure. The IAA comprehensively set out the country information on this issue (at [51]-[53], [55] and [57]-[58]). The IAA accepted that the applicant might be charged for a breach of the Immigrants & Emigrants Act (“I & E Act”) and might be held at the airport for a few days (at [54]). The IAA also accepted that the applicant might undergo questioning on return and would plead guilty to an offence under the I & E Act (at [56]).
Despite these findings, the IAA concluded that any short period of detention or a fine would not amount to serious harm (at [55]) and that the I & E Act was a law of general application (at [56]). The IAA also found that the applicant would have the skills and experience to obtain work and that he could rely on the support of his family (at [57]).
At [59], the IAA concluded:
I accept that if the applicant returned to Mannar he may be the subject of monitoring for a period by the authorities but I do not accept that this would constitute harm. I also accept that he may experience some social stigma within the Sri Lankan community as a failed asylum seeker and as a person who has not lived in Sri Lanka for almost seven years. However, I am not satisfied that this, if it does occur, amounts to serious harm. I do not accept that any practical difficulties that the applicant may face in re-establishing himself, or any social stigma he may face as a returning asylum seeker from Australia constitutes serious harm. Overall, I do not accept that the applicant has a well-founded fear of persecution on these bases.
The IAA was not satisfied that the applicant met the criterion in s.36(2)(a) of the Act (at [60]).
The IAA then considered whether the applicant faced a real risk of significant harm for any reason. The IAA determined:
63. I have found that that due to his illegal departure, the applicant will probably be identified on arrival at the airport, arrested and charged with breaches of Sri Lanka immigration law if returned to Sri Lanka. He will likely be detained for several hours at the airport and this detention may last for up to two days; he will likely be subject to a fine and associated costs and bail. He may face a period of monitoring upon return to his home in Mannar in the north of Sri Lanka. He may face some social stigma and a number of everyday challenges getting reestablished. However, I am not satisfied that any of these issues, either individually or cumulatively would amount to torture, the death penalty, or would result in any of the applicant being arbitrarily deprived of his life. I am not satisfied that these issues amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined under s.36(2A) of the Act.
64. I have otherwise found that the applicant would not face a real chance of harm arising from the protection claims he has have put forward, or from any combination of his claims. As ‘real chance’ and ‘real risk’ have been found to meet the same standard, it follows that the applicant does not face a real risk of significant harm on any of these bases if returned to Sri Lanka.
The IAA was not satisfied that the applicant met s.36(2)(aa) of the Act (at [35]).
Accordingly, the IAA affirmed the decision not to grant the applicant the visa.
Proceedings in this Court
The applicant’s judicial review application dated 4 December 2019 contains two grounds of review as follows:
1.The IAA didn’t give enough weight to relevant information about the persecution of young Tamil men.
2. The IAA didn’t listen to my story and my fears of what would happen to me when I return.
The applicant was given an opportunity to file an amended application, any affidavit evidence and an outline of written submissions.
On 24 August 2020, the applicant emailed the Registry two documents. These documents related to a complaint made by an unknown individual to the Sri Lankan Human Rights Commissions on 23 August 2019. The Court marked the correspondence as Exhibit 2. This will be addressed below. It does not appear that the applicant provided Exhibit 2 to the IAA. The only reference to a complaint made to the Human Rights Commission was in relation to the applicant’s assertion that his mother had lodged a complaint after he was detained.
The materials before the Court are thus limited to a Court Book numbering 523 pages (marked as Exhibit 1), Exhibit 2 and an outline of written submissions filed by the Minister on 13 August 2020.
The applicant appeared before this Court without legal representation. He was assisted by a Tamil interpreter. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought that the IAA “did wrong”. This is now the standard procedure in this Court following the decisions in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] and Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the IAA’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that he fears the Criminal Investigation Department (the “CID”) in Sri Lanka and explained he has suffered harm. The applicant then referred to Exhibit 2 (which is discussed further below). He also stressed that he fears persecution from Muslims in Sri Lanka and believes the IAA did not address this “individual fear”. The Court will address this issue in relation to Ground 2 below.
Noting that the applicant was unrepresented, the Court, with the assistance of the Minister’s solicitors, has undertaken a more active role in the review of the IAA’s decision and has not confined itself to the arguments or concerns raised in the judicial review application or by the applicant before the Court: EII17 v Minister for Immigration and Border Protection [2018] FCA 1863.
Consideration
Ground 1
Ground 1 provides:
The IAA didn’t give enough weight to relevant information about the persecution of young Tamil men.
It is well accepted that the weight the IAA affords to country information is a matter for the IAA: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10. The applicant’s complaint here is that the IAA did not give enough weight to certain information. Unfortunately, this rises no higher than disagreement with the IAA’s decision and disagreement, no matter how strongly felt, does not give rise to jurisdictional error.
The applicant takes particular issue with what he perceives as the IAA not giving “enough weight” to specific information about the persecution of “young Tamil men”. Although not entirely clear, it appears the applicant is suggesting that the IAA did not give enough weight to the 185 pages of country information that the applicant provided with his visa application.
The IAA expressly stated that it had had regard to these documents (at [5]). During the course of considering whether the applicant did face a chance of harm as a young Tamil male, the IAA explicitly refers to this information (at [37]).
The IAA’s task was to determine the applicant’s chance of harm as a young Tamil male in the reasonably foreseeable future. The articles and evidence the applicant seeks to rely on relate to incidents that are quite dated. The information the IAA relied on was more current and reflected the situation in Sri Lanka “at present”. In that context, the fact that the IAA relied on more recent reports from the Department of Foreign Affairs and Trade and UK Home Office was entirely reasonable.
Here, the IAA considered the specific circumstances which were said to give rise to attention from the authorities (i.e., relating to persons associated with politically sensitive issues, former LTTE members and those involved in Tamil separatism) and positively found that the applicant did not claim to be or was not accepted as falling into these categories.
There was nothing erroneous in the IAA’s consideration of the country information it relied on when assessing whether the applicant faced a real chance or risk of harm as a result of his being a young Tamil male. The weight the IAA gave the information before it was entirely a matter for the IAA and was reasonable when read in context.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides as follows:
The IAA didn’t listen to my story and my fears of what would happen to me when I return.
The applicant appears to be claiming that the IAA failed to properly consider all of his claims or that the IAA did not “listen to him”. Before this Court, the applicant stated that the IAA did not consider his claim concerning the troubles he faces from Muslims in Sri Lanka.
The Court notes that this matter was previously remitted to the IAA because it was found that the IAA had not addressed the applicant’s claim to fear harm from Muslims in his village.
Here, the IAA carefully and thoroughly addressed the applicant’s claim to fear harm arising from a conflict with Muslims, as follows:
45. As noted above, the applicant claimed that he would face harm from Muslims in neighbouring villages if he was returned to Sri Lanka. The applicant indicated that he and some friends had been involved in a physical altercation with Muslims from a neighbouring village in around 2010 or 2011 due to religious differences.
46. In the applicant’s account, this appears to be a one-off event, and it is not clear exactly when it occurred, what led to it, or whether there were ongoing consequences for the applicant. The applicant’s account of this event is very vague, and lacks details. This event does not feature in the applicant’s SHEV application and was only mentioned, in passing, in his Protection Visa Interview. Nevertheless, the original IAA decision was remitted by the Federal Circuit Court because the judge expressed concern that the IAA decision did not specifically address a claim that the applicant feared harm from particular Muslim people who resided in the next village but rather had only addressed general community violence by Muslims against Christians.
47. Religion plays a significant role in daily life in Sri Lanka and strongly correlates with ethnicity: most Sinhalese are Buddhist and most Tamils are Hindu. A minority of each ethnicity is Christian26. Religious schools exist and Sri Lankans are able to send their children to the school of their choice. The Constitution of Sri Lanka provides for freedom of religion, and Article 14 for freedom of public and private worship27. Religions tensions do exist in Sri Lanka. Over recent years, several Sinhalese Buddhist movements have emerged in Sri Lanka which espouse a extremist and nationalist ideology and this has led to religious conflict in some parts of Sri Lanka. Some reports suggest these movements are condoned by some elements in Government. Buddhists were perpetrators of most of the reported religious incidents, followed by Hindus and to a lesser extent, Catholics against other Christian denominations. There is no country information before me that indicates that Muslims are targeting Christians for any harm for due to religion.
48. I accept that this applicant attended a Roman Catholic school in Mannar and that he is a Roman Catholic. The applicant was born in 1990. He departed Sri Lanka in 2012 around seven years ago. I accept he and some friends fought with Muslims from neighbouring villages in 2010 or 2011. He has not suggested that any member of his family who remains in Mannar has had any problems with local Muslims. The applicant has not indicated when he was involved in conflict with Muslims, or what led to this altercation beyond a very brief confrontation. He has not indicated that the altercation was ongoing, rather on his own evidence; this appears to be a one of episode.
49. After careful consideration of this claim, I am not satisfied that the applicant’s fears about harm from Muslims are warranted. Given the passage of time, the lack of consequences for other family in his area and the isolated nature of this event, I do not accept that the applicant, a Christian, would face a real chance of harm from the Muslim population generally or that the applicant specifically would face a real chance of harm from Muslims in neighbouring villages
As Counsel for the Minister submitted at the hearing, the IAA here has made factual findings and has concluded that the applicant does not face harm from those he had previously had conflict with or from Muslims generally in Sri Lanka.
This conclusion was open to the IAA in light of the factual findings it had made and the country information that it referred to.
The IAA’s summarised the applicant’s claims at [7] as follows:
• He is a Sri Lankan Tamil of the Roman Catholic faith. He was born and lived in Mannar, Northern Province with his father, mother, sister and a cousin who lived with them from a young age (and whom the applicant routinely describes has his brother (hereafter Cousin/Brother)). His parents and sister remain in Mannar.
• He completed his schooling in Mannar around 2008 and then lived in Colombo for around one year while he underwent further study. Then he returned to Mannar and took up work as a fisherman with his father and uncle in 2009.
• No member of the applicant’s family was ever a member of the Liberation Tigers of Tamil Elam (LTTE), however, they did support the LTTE, and provided assistance to the group during the period when the LTTE controlled Mannar, including providing food, water and transport.
• From the time the applicant became a fishermen in late 2009, he was involved in providing transport for the LTTE on the fishing boat. After the military defeat of the LTTE, the applicant and his father and uncle, transported several groups of former LTTE members to India.
• In March/April 2012, the Sri Lankan Police Criminal Investigation Department (CID found out about what support they had provided to the LTTE and arrested his father, uncle and himself. They took them to the CID office in Mannar and his uncle was later taken to Colombo. They were interrogated about links to the LTTE and assaulted by the CID. He was held for four to five days.
• While he was detained, his mother lodged a complaint with the Sri Lankan Human Rights Commission (SLHRC). A village headman and the local Catholic Priest spoke to the Officer-in-Charge at the station and he and his father were released. Several days later he was re-arrested, later he was released. During this period his uncle remained in custody in Colombo. His uncle has not been seen since that time and is presumed dead.
• Several days after his release the CID came to his house looking for him. He was not there, so they arrested his father instead. His father was tortured and beaten at the CID office. The applicant was unable to stay in his village and went into hiding end of September 2012 in Jaffna, at the home of relatives.
• The CID arrested his cousin/brother instead, and interrogated him and beat him while in detention. After several days he was released without charge, A few days after his release, he collapsed and died due to the mistreatment he received from the Sri Lankan authorities.
• He remained in hiding, but the authorities found out he was in Jaffna and approached his relatives there to find him. During this period, he heard that his first cousin was also arrested by the authorities; later his cousin’s body was found in August 2013. The applicant returned to his village in Mannar in secret.
• In September 2012, a friend from his village took him by boat to India illegally. In India, he tried to register as a refugee, but was refused. He subsequently made arrangements to travel to Australia. He left India in October 2012 and arrived in Australia on 3 November 2012.
• In 2013, another uncle (U2) was taken in to custody. Later, his dead body was found in the ocean.
• While he lived in Sri Lanka, he and some friends were involved in a physical altercation with Muslims from a neighbouring village. The applicant fears that if returned to Sri Lanka, this may happen again.
It is noted that the statement that accompanied the visa application contained a significant amount of country information or “contextual” information. The crux of the applicant’s claims is found in the following paragraphs in his statement that accompanied the visa application (CB 75-79), as follows:
14. Against this background, there were thousands of LTTE people in the north of Sri Lanka hiding and trying to avoid capture by the Sri Lankan security forces. In late 2010, we gave transportation to LTTE cadets, who had been fighting the Sri Lankan government forces and who were now in hiding and trying to escape to India. We used our boat to transport them, but we had no real choice.
15. The CID came to know about what we had done and they came to our house in March/ April 2012 and they arrested my father, uncle and myself and took us to the CID office in Mannar. My uncle was then taken from the CID office to Colombo, whilst my father and I remained at the station.
16. That we remained at the station, where we were interrogated and then assaulted by the police. We were quizzed about our links to the LTTE and what information we had.
17. My mother was very upset at our detention and so she made a complaint to the Human Rights Commissioner. My mother then approached the village headman and the Reverend Father from our church. That they approached the Officer in charge and my father and I were released on conditions.
18. That my uncle remained in custody in Colombo.
19. That a few days after my release, the CID came to my house looking for me. I was not present at home and so they arrested my father and took him away.
20. That at the CID office, he was tortured and beaten and then later on, they came back to my house and took my cousin brother (omitted). He too was interrogated and beaten by the authorities and remained in detention, without being charged. He was finally released after a few days That a few days after his release, he collapsed and died. We believe that the beatings he suffered at the hands of the Sri Lankan authorities, resulted in his death.
22. That given they had taken my father and brother, I continued to remain in hiding, as I was fearful that I too would be arrested. I kept moving around .
23. I was unable to stay in my village and so I moved to Jaffna and then went into hiding and I was living with relatives. I could not stay there for a long period, as I knew I would be found by the authorities and so in September 2012, from my village I went to India by boat to safe my life, my fear was made worse when I came to know that my first cousin was also arrested by the authorities and he went missing and was never seen again. His body was found in August 2013.
24. That upon arriving in India, I had to register as a refugee. However, the Indian authorities refused to register me as a refugee. I was allowed to live outside the refugee camp.
25. I came to know through one of my friend that a boat was leaving for Australia and given I could not return to Sri Lanka and I could not register as a refugee in India, I had no other alternative, but to find the money and pay an agent to get me on the boat to Australia. I manage to contact ·my parents and I told them about this and they made arrangement with that agent to go to Australia by boat.
26. I left India in October 2012 and arrived on Christmas Island on 3 November 2012.
CURRENT SITUATION AND WHY IT IS UNSAFE FOR ME TO RETURN TO SRI LANKA
27. Even though the war has officially ended, Sri Lanka remains a heavily militarized country, correspondents say and the following articles highlights this problem and reinforce the problems that I encountered before coming to Australia.
…
31. I say that I am in fear of returning to Sri Lanka because I will suffer persecution, because of the fact that I am a male Tamil and because of my family links to the LTTE, and my imputed support of the LTTE by the government forces. That in support of such a fear I refer you to the following…
(Without alteration)
The delegate’s decision records the applicant advanced a further claim as follows:
During the applicant’s PV interview of 8 May 2018 he also mentioned that he experienced conflict with his neighbours due to religious tensions. The applicant is Christian and the nearby village had many Muslim people. The applicant and his friend fought with these people when they began any conversation about religion.
When one considers the claims above with the IAA’s summary of the applicant’s claims (see [72] above), it is clear that the IAA has identified all of the claims advanced by the applicant in his statement and before the delegate and has included significant detail as relevant to those claims.
As for whether the IAA actively “engaged” with those claims, the Court finds as follows:
a)the IAA made factual findings on each of the claims that the applicant had advanced. These factual findings were based on the written claims, the oral evidence the applicant provided, the supporting documents that the applicant had given and the country information that was relevant to the particular claims;
b)the IAA’s findings were logical and rational. When the IAA did not accept a claim, it provided cogent reasons for doing so. These reasons included an assessment that the evidence the applicant provided was “vague” or “unconvincing”, that there was no corroborative evidence or that the evidence that was provided did not support the applicant’s claims and did not appear to relate to what was being advanced. These concerns or “doubts” (of which there were many) provided a probative basis for the findings that the IAA made; and
c)the IAA’s consideration of whether the applicant faced a risk or chance of harm involved an active engagement with the applicant’s evidence (such as the applicant’s account of the fight with Muslims in his village) and country information concerning the present situation in Sri Lanka for Tamils and returning asylum seekers.
There is nothing in the materials before the Court to suggest that the IAA did not “listen to the applicant” or address his claims to fear returning to Sri Lanka. The IAA comprehensively identified each of the applicant’s claims and forensically engaged with them.
To the extent that the reference in ground 2 to the IAA failing to “listen to” the applicant can be taken to be an allegation that the applicant was not invited to attend a hearing (and that this amounts to an error), any suggestion of error in this regard is rejected. Section 473DB of the Act requires the IAA to make a decision on the papers. There was no obligation to invite the applicant to a hearing, the applicant had no “right” to attend a hearing and, finally, there was no reason here for the IAA to exercise the discretion to invite the applicant to a hearing.
Ground 2 is, accordingly, dismissed.
Exhibit 2
As noted above, Exhibit 2 relates to a complaint made by an unknown individual to the Sri Lankan Human Rights Commission on 23 August 2019. The complaint states that the individual has been arrested, “forcefully stuffed into a vehicle” and “severely assaulted with the Iron Rod and club”. The complaint also refers to the individual’s wife having identified “CID Personnel” to the Navy and asks that “the matter” be “looked into”.
Before this Court, the applicant explained that Exhibit 2 refers to what has happened to his uncle (who was sent from Australia to Sri Lanka) upon his return to Sri Lanka.
The applicant says that Exhibit 2 demonstrates what will happen to him if he is returned to Sri Lanka.
While Exhibit 2 pre-dates the IAA’s decision, it does not appear that the applicant ever provided Exhibit 2 to the IAA. The IAA confirmed that no further materials were received from the applicant. Given that Exhibit 2 post-dates the delegate’s decision, if it had been received by the IAA, the IAA would have been required to consider whether it met the requirements of s.473DD of the Act. As the IAA did not do so, and expressly stated that it had received no further information, the Court finds that Exhibit 2 was not provided to the IAA. The applicant did not suggest otherwise.
As Exhibit 2 was not provided to the IAA, it is difficult to identify how it could have had any bearing on whether the IAA fell into jurisdictional error.
Exhibit 2 appears to have been provided for the purpose of demonstrating that there are “still issues” in Sri Lanka. That is, Exhibit 2 is relied upon for the purpose of disagreeing with the IAA’s findings and implores the Court to grant the applicant the visa or recognise that he needs protection. This Court has no jurisdiction to do so.
While the Court is not unsympathetic, Exhibit 2 is not relevant to the Court’s role on judicial review.
Accordingly, no jurisdictional error arises from Exhibit 2.
Conclusion
The applicant’s judicial review application has failed to identify any jurisdictional error. The Court has otherwise reviewed the IAA’s decision and is unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 31 August 2020
1
14
2