EXO17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 582
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
EXO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 582
File number: MLG 2399 of 2017 Judgment of: JUDGE RILEY Date of judgment: 5 July 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to consider two of the applicant’s claims. Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 18 April 2023 Place: Melbourne Counsel for the Applicant: James Stoller Solicitor for the Applicant: Wimal & Associates Counsel for the First Respondent: Daye Gang Solicitor for the First and Second Respondents: Sparke Helmore ORDERS
MLG 2399 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXO17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
judge riley
DATE OF ORDER:
5 july 2023
THE COURT ORDERS THAT:
1.The decision of the Immigration Assessment Authority made on 26 October 2017 in matter number IAA17/03475 be set aside.
2.The matter be remitted to the Immigration Assessment Authority for determination according to law
3.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review 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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise visa.
BACKGROUND
In his written submissions filed on 17 September 2019, the applicant provided the following background to this matter:
4.The applicant travelled to Australia by boat, arriving at Christmas Island … [in] 2012, and was designated an unauthorised maritime arrival. On 14 January 2016, he was invited to apply for a SHEV, which he did on 1 April 2016. The applicant submitted a statutory declaration in support of his SHEV application in which he outlined his claims for protection.
5.On 17 March 2017, the applicant was interviewed by a delegate of the first respondent.
6.The applicant made various factual claims in support of his application, including:
(a) He was born in Jaffna, in the Northern Province of Sri Lanka, in 1981.
(b) He lived in Jaffna until 1994, when his family was displaced during the Sri Lankan Civil War and fled to Kilinochchi.
(c) In Kilinochchi, the applicant’s family were given land, located close to the LTTE airport, by the LTTE.
(d) In around 2007, a sister of the applicant was forcibly recruited by the LTTE. She was wounded and captured by the Sri Lankan Army in 2009.
(e) During the Sri Lankan Civil War, the applicant worked for the LTTE in various non-combat roles, including as a driver, carpenter and farmer. The applicant was also provided compulsory training by the LTTE in 2001.
(f) The applicant’s family was displaced on numerous occasions during the Civil War. The applicant went to the Mullaitivu district toward the end of the war, where he continued to work as a driver for the LTTE, transporting wounded people to hospital. During this period, the applicant was wounded in the leg by shelling. He continued working as a driver for the LTTE until he surrendered to the Sri Lankan army … [in] 2009.
(g) Thereafter, the applicant was sent to an internally displaced persons’ camp at Menik Farm (IDP camp). After about a week, he was called to the office of the CID and interrogated about the LTTE. The interrogation continued for a week. During this time, the applicant was tortured, being hit with an iron pipe and a cricket bat, before having his forehead broken with the butt of a rifle. The applicant did not tell the CID about his involvement with the LTTE, or provide them with any information about the LTTE.
(h) In May 2010, the applicant obtained a pass which allowed detainees of the IDP camp to attend Vavuniya town for shopping or medical appointments. The applicant used this pass, left the IDP camp, and travelled to Point Pedro in Jaffna, where he lived in a friend’s house until May 2011.
(i) In May 2011, the applicant returned to Kilinochchi to join his family, who had been resettled there. The applicant commenced to clear his family's land, the land next to the LTTE airport. However, while he was clearing the land, the applicant was told by the CID not to do so.
(j) The applicant ignored this direction, and continued to clear the land, setting fire to grass and weeds. The CID returned and questioned his family and neighbours about the land-clearing. The applicant was informed about these inquiries by a neighbour, and immediately left his village to escape the CID’s attention. The applicant was informed by his mother that the CID returned to his home looking for him. Fearing for his life, the applicant fled Sri Lanka by boat for India in September 2011, where he lived for around a year.
(k) In September 2012, the applicant left India by boat, arriving at Christmas Island in October 2012. The applicant was informed by his mother that, since he left Sri Lanka, the CID returned to look for him on three occasions, and that the CID told his mother that he would be killed on his return.
7.Based on the factual claims set out above, the applicant claimed to have a well-founded fear of persecution in Sri Lanka on a number of bases, including:
(a)That he feared persecution in the future, at the hands of the Sri Lankan authorities, in that if the CID discovered his past links with the LTTE, he would be tortured.1 The applicant claimed to fear that the authorities would discover his past links to the LTTE because those links were well known by people in his village, and he feared that people opposed to his family, in the village, would inform the authorities of those links.2
(b)That he feared persecution from the Sri Lankan authorities because he had ignored a direction of the authorities to stop clearing land located near the former LTTE airport, that the CID searched for the applicant as a result of him ignoring that direction and continuing to clear his land, and that the CID threatened to kill the applicant if he returned to Sri Lanka.3
8. The delegate refused the applicant’s application on 25 August 2017.
9.The IAA purported to conduct a review of the delegate’s decision under Part 7AA of the Migration Act 1958 (the Act), affirming the delegate’s decision on 26 October 2017.
10.In doing so, the IAA made a number of the factual findings in respect of the applicant’s claims, including that the IAA:
(a)Accepted that the applicant worked in various non-combatant roles for the LTTE and a relative of an LTTE commander, and undertook compulsory training with the LTTE.4
(b) Accepted that the applicant was held at the IDP camp, and was subjected to questioning and severe mistreatment, including being beaten so badly that he was rendered unconscious and required medical ttcatment.5
(c) Accepted that the military or other Sri Lankan authorities had taken control of the former LITE airport, and the laud around it, and that the applicant's family was told it could not return to its land as a result.6
(d) Accepted that the applicant nonetheless began clearing his land.7
(e) Found that Sri Lankan authorities: inquired as to who was clearing land in an area under their control, established it was the applicant who was clearing the land, visited the applicant's house to speak to him, and returned on one or two occasions before being told that the applicant was in India.8
(f) Accepted that the applicant, having regard to his previous experiences, feared being taken and harmed or even killed, by the Sri Lankan authorities, but not accepting that the authorities who searched for the applicant were members of the CID, or that the visits by the authorities indicated that authorities had any adverse security interest in the applicant.9
FN 1:Applicant’s statutory declaration in support of his application for a SHEV visa, [46], CB 68.
FN 2: Transcript of Applicant’s interview with the delegate, p 20, line 42 to 45.
FN 3:Applicant’s statutory declaration in support of his application for a SHEV visa, [38], CB 67.
FN 4: Reasons, [15], CB 194.
FN 5: Reasons, [18], CB 194 to 195.
FN 6: Reasons, [24], CB 196.
FN 7: Id.
FN 8: Reasons, [26] to [27], CB 196.
FN 9: Id.
MATERIAL RELIED UPON
At the hearing before this court, the applicant relied upon:
(a)his application filed on 9 November 2017 and amended on 17 September 2019 (“the application”);
(b)the court book filed on 8 August 2018;
(c)his written submissions filed on 17 September 2019;
(d)the affidavit affirmed by Mylvaganam Wimaleswaran on 16 March 2023; and
(e)the applicant’s list of authorities filed on 6 April 2023.
At the hearing before this court, the Minister relied upon:
(a)the response filed on 30 January 2018;
(b)the court book filed on 8 August 2018;
(c)his written submissions filed on 4 April 2023; and
(d)the first respondent’s list of authorities filed on 12 April 2023.
GROUND 1
The first ground of review in the application is:
1.The IAA constructively failed to exercise its jurisdiction by failing to consider, properly or at all, the applicant’s claim to fear being tortured by the Criminal Investigation Division of the Sri Lankan Police Force (CID) in the event that the CID were to discover that he had, in the past, worked as a driver for the Liberation Tigers of Tamil Eelam (LTTE).
PARTICULARS
a)In the statutory declaration accompanying his application for a Safe Haven Enterprise visa, the applicant stated, under the heading ‘Why I believe I will suffer significant harm’:
[46] Towards the end of the civil war, I worked as a driver for the LTTE. If the CID finds out, they will torture me for information about the LTTE. I believe I would die if they torture me again: CB 68.
b)At his interview with the Minister's delegate, the applicant set out the reason he feared that the Sri Lankan authorities would discover his LTTE history, stating that his LTTE links were well known by people in his village, and that ‘people who are against us will inform that to the government.’
c)The IAA found (at [20]) that the Sri Lankan authorities had not, in the past, discovered his links to the LTTE; and concluded, at [22], that it was ‘satisfied that the applicant does not now face a real chance of harm on the basis of any real or imputed association with the LTTE’ (emphasis added).
d)However, the IAA failed to consider the claim made by the applicant: that his past links to the LTTE would be discovered in the future, because people from his village would inform the authorities of those links, and that he would be tortured as a result.
e)In this respect, the IAA accepted that the applicant had worked as a driver for the LTTE, but made no findings as to whether (as claimed): there was a real risk or real chance that people who knew of the applicant's past would inform the authorities of that past; if so, there was a real risk or real chance that the applicant would be tortured as a result.
In his written submissions, the applicant said in relation to this ground:
11.In the Statutory Declaration accompanying his SHEV application, the applicant stated, under the heading ‘Why I believe I will suffer significant harm’:10
[46] Towards the end of the civil war, I worked as a driver for the LTTE. If the CID finds out, they will torture me for information about the LTTE. I believe I would die if they torture me again.
12.During his interview with the delegate, the applicant expanded upon his reasons fearing there was a real chance that the CID would find out about his history of working for the LTTE, stating:11
I lived next to the LTT airport for a very long time and because of that I knew the LTT pilots, they were good with me. So because of that everyone in the village they knew that we were very good with the LTT. So because of that even up until now people still believe that and people who are against us will inform that to the government .. .. About 25 per cent of the people knew that I worked there as a driver.
(emphasis added)
…
15.The applicant’s claim that he feared the discovery in the future by Sri Lankan authorities of his history of working as a driver for the LTTE, and that this discovery would lead to him being tortured, was a ‘submission of substance’ that the IAA was required to consider to properly exercise its jurisdiction.13 It failed to do so.
16.To give this submission proper, genuine and realistic consideration, the IAA needed to consider, amongst other things:
(a)First, whether it was satisfied that the applicant had worked as a driver for the LTTE as claimed.
(b) Second, if so, whether there was a real chance or a real risk of that fact being discovered by the authorities, as the applicant claimed there was.
(c) Third, if so, whether there was a real chance or real risk of him being tortured or otherwise seriously harmed as a result.
17.The IAA considered the applicant’s claim to have worked as a driver for the LTTE. It found that he had done so. However, it failed to give any consideration as to:
(a)whether there was a real chance of the authorities discovering this in the future (in the way the applicant claimed it would be - by villagers informing authorities of his past links to the LTTE - or otherwise); and/or
(b)if the applicant’s history was discovered by the authorities, whether there was a real chance of the applicant being tortured as a result.
18.At [19] of its reasons, the IAA made a positive finding that the Sri Lankan authorities had not discovered the applicant’s LTTE-links in the past, stating:
I am satisfied ... that if a person was identified as having ties to the LTTE, they would be taken away from the IDP camp and processed elsewhere. Although the applicant was initially questioned and subject to severe mistreatment, he was not removed from the camp ...
19.This finding is critical: having concluded that the applicant did have real links with the LTTE, but that the authorities had not discovered those links in the past, the IAA was required to consider the applicant’s claim that those links would be discovered in the future, and he would be tortured as a result.
20.The applicant accepts that the Tribunal considered part of his evidence as to his (and his family’s) past links to the LTTE, from [20] to [22] of its reasons for decision. However, the IAA did not consider the applicant’s claim to fear that his history of working for the LTTE might be discovered in the future.
21.Instead, from [20] to [22], the IAA confined its attention to:
(a)First, whether the authorities viewed the applicant as having an LTTE profile at the time he was released from the IDP camp. It concluded that he was not considered to have such a profile; reasoning that were he to have such a profile, he would not have been released. 14
(b)Secondly, whether the applicant had engaged in any activities since his release from the IDP camp which would have brought him to the adverse attention of the authorities as someone with an LTTE profile, concluding he had not engaged in any such activities. 15
22.That the IAA confined its consideration of the applicant's claim in this way as demonstrated by the IAA’s dispositive conclusion, in respect of this issue, at [22]:
… I am satisfied that the applicant does not now face a real chance of harm on the basis of any real or imputed association with the LTTE, including from any familial association. As I am satisfied that he does not have any LTTE profile, it follows that I am satisfied that he does not face a real chance of being sent to a rehabilitation centre should he return to Sri Lanka.
(emphasis added)
23.That is, the IAA concluded that because the applicant did not – as at the date of its decision - have an adverse LTTE profile, he was not at risk of harm due to his past links to the LTTE. In making this assessment, the IAA did not give any consideration to whether those links might be discovered by authorities in the future, as claimed. This constituted jurisdictional error, both as a failure to deal which the claim made by the applicant, and/or as a failure to assess whether he faced a real chance of persecution in the reasonably foreseeable future as a result of facts found.
24.The IAA repeatedly referred back to its finding that the applicant did not - at the time of his departure from Sri Lanka or at the time of its decision - have any LTTE profile, stating:
(a)at [42]: ‘I have found that the applicant is not of any interest to the authorities’;
(b) at [43]: ‘I have found that the applicant does not have any adverse profile in relation to a real or imputed link to the LTTE ...’;
(c) at [51]: ‘I have found above that the applicant is not of any adverse interest for the authorities for any reason’;
(d) at [54]: ‘I have found that the applicant does not have an adverse profile or is otherwise of any interest to the authorities.’
25.Despite this, at no point did the IAA consider whether the applicant’s links to the LTTE might be discovered by authorities in the future, in the way that he claimed they would be discovered or otherwise.
26.It failed to undertake this assessment despite apparently accepting that the that the authorities’ interest in the applicant might fluctuate over time, rather than be fixed as at the date of his departure from the IDP camp. In this respect, it noted at [22] that:
apart from the land clearing incident and his departure from Sri Lanka ... the applicant has not claimed to have been involved in any activities or associations since his release from the IDP camp that would bring him to the adverse attention of the Sri Lankan authorities
27.A similar observation is made at [42]. However, this line of inquiry failed to address the claim actually made: that the applicant’s past activities or associations would be discovered by the authorities in the future, thus exposing him to persecution.
FN 10:CB 68.
FN 11:Transcript of interview, p 20, line 42 to 45.
FN 12:NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55) (Black CJ, French and Selway JJ).
FN 13:SZSCC v Minister for Immigration (2014) 317 ALR 365, [81]. See also, NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, [59]-[63].
FN 14:Reasons, [21], CB 195.
FN 15:Reasons, [22], CB 195.
Essentially, the applicant’s point in this ground was that he feared harm because his activities in the past might be discovered in the future. The Minister submitted, firstly, that this claim was not properly articulated. In his written submissions, the Minister said in relation to this point:
5.The particulars to the Applicant’s Ground 1, and his Outline of Submissions at [11]-[27], set out the following evidence:
a)His evidence in his statutory declaration dated 22 March 2016 at [46] that, if the CID found out that he had worked as a driver for the LTTE, that the CID would torture him for information about the LTTE;
b) His evidence in the delegate interview at page 20, lines 42-45, where he said that the Sri Lankan authorities would discover his LTTE history and that “people who are against us will inform that to the government”.
…
7. The Minister submits that this claim, to fear of harm upon the authorities finding out in the future about the Applicant’s association with the LTTE in the past, was not properly articulated.1 The two pieces of evidence relied on above constitute the only references to the authorities finding out in the future. There is no articulation as to what kind of people may be “against him”, to quote the language from the delegate interview. That claim is only raised at the end of the interview and is not mentioned anywhere earlier. The Applicant does not offer further explanation about how the authorities may come to find out about his past association with the LTTE. Similarly, in the Applicant’s statutory declaration dated 22 March 2016, there is no mention of who might inform the CID of the Applicant’s work for the LTTE in the future, and what their motivations might be.
8.There is no evidence that any of the Applicant’s local villagers bore any ill will or other motive to report to any authorities that the Applicant had worked with and for the LTTE. At [15] of his statutory declaration, the Applicant does state that “I was taken for interrogation by the Criminal Investigation Department (CID). I believed someone has informed them me as a LTTE member.” However, where the Applicant claims that he was often seen in the village working with and for the LTTE, and that “most of the Tamils who lived in LTTE area knew that I worked for the LTTE”,2 it is possible that the Applicant’s association with the LTTE was common knowledge to the point that no individual had to inform the CID of the Applicant. In other words, it is possible that the CID was aware of the Applicant’s work with the LTTE from its employees posted in or near the village. Indeed, the Applicant said at the end of his interview that “about 25 per cent of the people [in the village] knew that I worked there as a driver”.3 There is no other evidence corroborating the Applicant’s belief that he was informed upon, that makes the explanation of an informant more likely than the explanation of widespread knowledge about the Applicant’s involvement that eventually made it to the ears of a CID employee.
9. The Applicant’s stated fear as to future harm upon authorities finding out about his LTTE associations in the future is therefore not clearly articulated because he did not specify any pathways by which that information may come to the Sri Lankan authorities’ attention in the future. From the paucity of evidence, it can be inferred that neither the Applicant nor the IAA considered it a clearly articulated claim that needed to be considered in order for the IAA to complete its duty to review.
FN 1:NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] (Black CJ, French and Selway JJ).
FN 2:Applicant’s statutory declaration made 22 March 2016.
FN 3:SHEV interview transcript at p20, lines 4-5.
It seems to me that the claim that the applicant could be harmed in the future if the authorities found out that he had assisted the LTTE in the past was clearly articulated. The applicant said at paragraph 46 of his statutory declaration made on 22 March 2016 (CB 68) that:
Towards the end of the civil war, I worked as a driver for the LTTE. If the CID finds out, they will torture me for information about the LTTE. I believe I would die if they torture me again.
That was a clear claim that, if the CID were to find out that the applicant had worked for the LTTE, he faced serious harm. In addition, the applicant described to the delegate a mechanism by which the CID might find out that the applicant had worked for the CID, being neighbours who were “against him” might inform the authorities that he had worked for the LTTE. The applicant told the delegate that:
I lived next to the LTT airport for a very long time and because of that I knew the LTT pilots, they were good with me. So because of that everyone in the village they knew that we were very good with the LTT. So because of that even up until now people still believe that and people who are against us will inform that to the government .. .. About 25 per cent of the people knew that I worked there as a driver.
The Authority accepted that, upon the applicant’s return to Sri Lanka, the authorities might question his neighbours. The Authority said at paragraph 49 of its reasons for decision that:
On the basis of the evidence before me, I accept that the applicant may be questioned on return as part of the airport screening process. The country information before me indicates that this could involve an interview, contact with the police in his home area, his family and/or neighbours. …
That was more than enough to require the Authority to consider the claim.
Contrary to paragraph 7 of the Minister’s submissions:
(a)the fact that there were “only” two pieces of evidence about the authorities finding out in the future is immaterial to whether the claim had to be considered;
(b)the applicant did not need to articulate what type of people might be “against him”, beyond saying that they were neighbours;
(c)it is immaterial that the claim was only raised at the end of the interview;
(d)the applicant did not need to offer a “further explanation” about how the authorities might find out about his past work for the LTTE, beyond saying that his neighbours might inform on him (especially as the Authority accepted that his neighbours might be questioned upon his return to Sri Lanka); and
(e)it is immaterial that the applicant did not specify in his statutory declaration who might inform on him or what their motivations might be, particularly as he described the mechanism in his interview with the delegate and the Authority accepted that neighbours might be questioned upon the applicant’s return to Sri Lanka.
Contrary to paragraph 8 of the Minister’s submissions:
(a)it is immaterial to the question of whether the Authority had to consider the claim that there was “no evidence” that any neighbours bore the applicant any ill will, beyond the applicant’s assertion that people were “against” him;
(b)the Authority accepted at paragraph 18 of its reasons for decision that the applicant was identified by an informer as being an LTTE member (as opposed to a person who did work for the LTTE);
(c)the Authority accepted, by inference, at paragraph 18 of its reasons for decision, that the applicant was not, when he was in the internally displaced persons’ (“IDP”) camp, treated by the authorities as a person with LTTE links because he was not separated from other internally displaced persons and he was not taken to a special detention and rehabilitation camp; and
(d)the balance of paragraph 8 is speculative and invites merits review.
Contrary to paragraph 9 of the Minister’s submissions:
(a)the pathway by which the authorities might come to find out that the applicant had worked for the LTTE was specified; and
(b)the quantity of evidence in support of a claim does not affect whether it is clearly articulated or not.
In the alternative, the Minister argued at paragraph 10 of his written submissions that the Authority had dealt with the applicant’s claim (to fear harm in the future because the authorities might discover that he had worked for the LTTE in the past) by findings about the improvements in the situation in Sri Lanka between 2009 and 2017. However, somewhat disconnectedly, the Minister then said:
11. The directly relevant paragraphs of the IAA’s decision as to the Applicant’s LTTE profile at present are at [21] and [22]:
a) [21] The applicant claims that after he was released from the camp, the CID came to the camp looking for him and told his family that he had to report to the CID office when he returned. I consider it is implausible that if the applicant was still of any interest to the CID, he would have been granted a pass and released from the camp. I consider it is implausible that the camp authorities, including the CID, would not have known he had been released and that they came looking for him. I also consider it implausible that the CID said he had to report on his return, given that he had been released and was not required to return to the camp. I do not accept this claim.
b) [22] Having regard to all of the evidence and findings above, I am satisfied that although the applicant was subject to initial investigation, by the time he was released from the IDP camp he was no longer of any interest to the Sri Lankan authorities in relation to his real or imputed links to the LTTE, including from any familial association. Apart from the land clearing incident and his departure from Sri Lanka (which are considered further below), the applicant has not claimed to have been involved in any activities or associations since his release from the IDP camp that would bring him to the adverse attention of the Sri Lankan authorities. I am satisfied that the applicant does not now face a real chance of harm on the basis of any real or imputed association with the LTTE, including any familial association. As I am satisfied that he does not have any LTTE profile, it follows that I am satisfied he does not face a real chance of being sent to a rehabilitation centre should he return to Sri Lanka. (emphasis added [by the Minister])
Paragraph 21 of the Authority’s reasons for decision arguably reflects a misconception of the applicant’s claims. He claimed at paragraphs 25 and 26 of his statutory declaration made on 22 March 2016 (CB 66) that:
25.After a year, there was a new Pass system. The detainees were allowed to go to Vavuniya town for shopping or medical appointments.
26. I managed to get one of these passes in May 2010. I went out of the camp and travelled to Point Pedro in Jaffna.
A fair reading of those paragraphs is not that the applicant was released, but that he was given a day pass and absconded. The Authority’s possible misconception in this regard fed into its other findings. However, this point was not argued so I take it no further.
The critical point, however, is that it was immaterial to ground 1 that the authorities did not consider the applicant to have links to the LTTE at the time he left the IDP camp because ground 1 is concerned with what might happen to the applicant if his neighbours tell the authorities in the future that he worked for the LTTE.
The Minister went on to say in his written submissions:
12.The IAA goes on to analyse country information setting out significant political and security improvements in the situation of Tamils without an LTTE profile since the end of the conflict in 2009, at [34]-[44]. Relevantly, relying on country information issued in 2016 and 2017, the IAA says:
a) At [37]: “Since the conflict ended in May 2009, the general security situation in Sri Lanka has greatly improved and the security situation in the North and East has improved dramatically, although military and security forces maintain a significant presence in the Northern Province.”
b) At [38]: “DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government... Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities.”
c) At [40]: “USDOS continued to report human rights abuses in 2015 and noted cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists, and LTTE sympathisers; however as noted above, overall the reports of harm relate to people with LTTE connections or who are otherwise Tamil separatist activists.”
d) At [41]-[42]: “in 2016, the United Kingdom Home Office (UKHO) reported that the new government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the Sri Lankan state... in its opinion, a person being of Tamil ethnicity would not in itself warrant international protection. Neither would being a person who evidences past membership or connection to the LTTE unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a 'stop' list at the airport. As noted above, the 'stop' list comprises those against whom there is an extant court order or arrest warrant... there are no other claims that the applicant has engaged in any activities, either in Sri Lanka or elsewhere, that may bring him to the adverse attention of the Sri Lankan authorities for any reason, including those noted above. I have found that the applicant is not of any interest to the authorities. I am satisfied that he is not subject to any court orders or arrest warrants, and that he will not appear on a 'stop' list at the airport.” (emphasis added)
13.The Minister submits that it is a fair reading of the two sets of paragraphs read together to mean that the Applicant’s profile of imputed or actual association with the LTTE had been extinguished by the time he was “released from the IDP camp” (at [22]) and that, thereafter, the situation in Sri Lanka had improved to the point where Tamils without an LTTE profile would not be targeted by the incumbent government. In particular, the IAA accepts at [42] the United Kingdom Home Office assessment that a person with past connection to the LTTE did not warrant international protection unless they had or were perceived to have a significant role in relation to post-conflict Tamil separatism, or a court order or arrest warrant placing them on a ‘stop’ list at the airport. Taking that with the finding at [22] that “by the time he was released from the IDP camp he was no longer of any interest to the Sri Lankan authorities in relation to his real or imputed links to the LTTE”, it should be inferred that the IAA did not consider that the Applicant’s profile would ever rise again to the level of warranting international protection because he had no associations with post-conflict Tamil separatism and because there was no evidence of a court order or arrest warrant out for him.
14. That is, even if it were explicitly accepted that people would inform the Sri Lankan authorities or CID on the Applicant’s return that the Applicant was a driver for the LTTE, he would not face a real chance or real risk of harm for this reason in circumstances where he did not have a profile that would lead to such harm.
In paragraph 12 of his written submissions, the Minister addressed the case of a Tamil without an LTTE profile. However, ground 1 concerns the situation where the applicant might get an LTTE profile through a neighbour informing on him in the future. The Authority did not consider that situation.
In paragraph 13 of his written submissions, the Minister again stated that the Authority found that the applicant did not have an LTTE profile when he left the IDP camp. However, as previously stated, that finding does not address the claim that the applicant might gain an LTTE profile in the future.
In paragraph 13 of his written submissions, the Minister then referred to a United Kingdom Home Office assessment. However, as the applicant pointed out, in paragraph 40 of its reasons for decision, the Authority also referred to and apparently accepted a United States Department of State report which the Authority summarised as follows:
USDOS continued to report human rights abuses in 2015 and noted cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists, and LTTE sympathisers; however as noted above, overall the reports of harm relate to people with LTTE connections or who are otherwise Tamil separatist activists. … (emphasis added)
That is, even in 2015, the Authority apparently accepted that people with LTTE connections were still being harmed in Sri Lanka. It is possible that, if the applicant’s neighbours informed on him as part of the entry interviews upon the applicant’s return to Sri Lanka, he would be perceived to be a person with LTTE connections. Therefore, it cannot be said that the Authority made general findings that subsumed the applicant’s claim that he might be tortured or killed if the authorities found out that he had worked for the LTTE.
For these reasons, I am satisfied that the Authority made a jurisdictional error by failing to deal with the applicant’s claim that he might be tortured or killed if the authorities found out that he had worked for the LTTE. The Minister conceded that such an error would be material. Consequently, ground 1 is made out.
GROUND 2
The second ground of review in the application is:
2.The IAA constructively failed to exercise its jurisdiction, by failing to consider, properly or at all, an integer of the Applicant's claim to fear harm as a result of the ‘land-clearing incident’, namely that the authorities who attended his home searching for him after his departure from Sri Lanka threatened to kill him if he returned; alternatively, if the IAA found that this matter was not material to its decision, any such finding was irrational
PARTICULARS
a)In the statutory declaration accompanying his application for a Safe Haven Enterprise visa, the applicant claimed:
[38] Since I have left the country, CID has come around three times looking for me. My mother has told them that I had gone to India. They have threatened my family that they will kill me upon my return: CB 67.
b)While the IAA recited this integer when summarising the applicant's claims, it failed to undertake any analysis of it, and made no finding as to whether the threat to kill the applicant was made, despite accepting that:
i.the applicant’s family’s land was located next to a former-LTTE airport;
ii.this land had been taken over by the Sri Lankan military or other authorities;
iii.the applicant defied those authorities by clearing the land after being told not to;
iv.the authorities came to the applicant’s home to ask about him, returning a number of times looking for the applicant.
c)Alternatively, in the event that the IAA’s failure to deal substantively with this integer of the applicant’s claim in its reasons arose from a finding that the matter was not material to the determination of the review (rather than arising from a failure to consider it), any such finding was irrational.
In his written submissions filed on 17 September 2019, the applicant said in relation to this ground:
28.The IAA failed to consider an integer of the applicant’s claim to fear persecution as a result of the land-clearing incident, namely that the authorities who attended his home after he left Sri Lanka had threatened to kill him on his return to Sri Lanka.
29.This integer of the applicant’s claim was explicitly put by the applicant, who stated at [38] of the statutory declaration accompanying his SHEV application:16
Since I have left the country, CID has come around three times looking for me. My mother has told them that I had gone to India. They have threatened my family that they will kill me upon my return.
30.While the IAA recited this integer of the applicant’s claim when summarising his claims for protection,17 it did not otherwise deal with it, and made no findings as to whether or not it accepted the claim. As set out above, it is not controversial that the failure by the IAA to properly deal with a clearly articulated claim is to be regarded as a constructive failure by it to have exercised its jurisdiction to review the delegate’s decision. Mere advertence to a claim, without any analysis, may not be sufficient.18
31.The applicant accepts that the Court should not too readily draw the inference that the IAA failed to consider this integer of his claim, in circumstances where the claim was adverted to by the IAA.19
32.However, reading the reasons fairly and as a whole, and without an eye keenly attuned for error, the Court should accept that the IAA failed to give proper, genuine and realistic consideration to the applicant’s claim that the authorities who visited his home after his departure threatened to kill him on his return. This was a claim of substance. Had it been considered and resolved in the applicant’s favour, it could have been dispositive of the IAA’s review.
33.In considering this ground, careful consideration must be given to the factual findings made by the IAA. Critically, the IAA accepted that:
(a)the ‘military or other Sri Lankan authorities have taken control of the former LTTE airport and the land around it’;20
(b) that the applicant’s family was therefore told it could not return to its land, but that the applicant nonetheless did so, returning to clear the block;21
34.Thus, the IAA accepted that the applicant defied the Sri Lankan authorities - i.e. the ‘military or other Sri Lankan authorities’, and accepted that those authorities came searching for the applicant: coming on one occasion, and then returning ‘on one or two occasions before being told that the applicant was in India.’
35.Had the IAA accepted that the applicant’s mother had been told by ‘the military or other Sri Lankan authorities’ that they would kill him if he returned, that finding could have been dispositive, irrespective of the fact that the IAA was not satisfied that the authority figures making the threat were from the CID.
36.This integer of the applicant’s claim was not subsumed in the finding that the IAA was not satisfied that the authorities who had returned to the applicant’s home were members of the CID. In circumstances where the IAA accepted that the authorities returned to the applicant’s home looking for him, it was required to consider the applicant’s claim that those individuals threatened to kill the applicant on his return to Sri Lanka. This integer of the applicant’s claim remains of critical importance, irrespective of whether the person issuing the threat worked for the CID, the military, or some other Sri Lankan authority. Put another way, it is no answer to the question of whether the applicant is at risk of persecution from an authority figure threatening to kill him that the applicant was mistaken as to the agency for which that person worked. A death threat from a member of the military might establish a risk of serious harm just as much as a death threat from a member of the CID.
37.For the same reasons, the finding that the IAA was not satisfied that the CID was the ‘authority’ responsible for visiting the applicant's home is not a factual premise upon which this integer depends. Whichever authority (the CID, the military, or another) had visited the applicant’s home, if that authority had threatened to kill the applicant on his return, the applicant's fear of persecution would be well founded.
38.Further and alternatively, should the Court form the view that this integer was not analysed in any detail because the IAA formed the view it was it was (sic) not material to its decision, the Court should conclude that this finding was irrational and one at which no other rational decision maker could arrive,22 having regard to the central importance of this integer of the applicant’s claim.
FN 16:CB 67
FN 17:Reasons, [12], CB 193
FN 18:Islam v Cash [2015] FCA 815 at [14] (Flick J)
FN 19:WAEE v Minister for Immigration and Multicultural and Indigenous Affairs 236 FCR 593, 604 at [47]
FN 20:Reasons, [24], CB 196
FN 21:Reasons, [24], CB 196
FN 22:Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ)
In response, the Minister said that the claim relied on for ground 2 was not clearly articulated. The Minister said at paragraph 27 of his written submission:
The evidence shows one bare sentence, not expanded upon anywhere else, where the Applicant claims that any Sri Lankan authority had threatened to kill the Applicant on his return. One brief mention of a claim cannot be a clearly articulated one. …
That is simply not correct. One brief mention of a claim is entirely sufficient to require the Authority to consider the claim, provided that the brief mention of the claim is clear. In the present case, the relevant claim was clear. Indeed, the Authority noted it in its summary of the applicant’s claims at paragraph 12 of its reasons for decision. The Authority said:
The applicant’s claims can be summarised as follows:
…
•His mother has told him the CID has kept coming back looking for him. This has happened about three times and when his mother told the CID he had gone to India, the officers said that they will kill him on his return.
…
The Authority’s express mention of the claim in its summary of the applicant’s claims is sufficient to show that the claim was clearly made.
In the alternative, the Minister argued that the Authority’s findings about the presently relevant claim was subsumed in findings of greater generality. The Minister said, at paragraph 28 of his written submissions, that:
Further and in the alternative, it can be implied that this integer of the Applicant’s claim as to threats to kill by the CID or by the Army can be subsumed in the IAA’s findings at [27] that the “authorities who came to his house did not detain or question any of his relatives about his LTTE involvement” and that it was “satisfied that these visits were in relation to the land clearly and that they do not indicate the authorities have any adverse security interest in the applicant”. The Minister invites the Court to infer that the IAA came to its own view, based on the whole of the evidence, that the authorities were looking for the person who had cleared the house and had nevertheless left without detaining or questioning any of his relatives, because they did not consider he had such an adverse security profile as to justify further action. It can be implied that the IAA did not accept that the authorities threatened to take the drastic further action of killing the Applicant if he returned because they had not even taken further action when they visited his home to find that he was not there.
Paragraph 27 of the Authority’s reasons for decision is as follows:
The authorities were asking who had cleared the land and were not looking for the applicant personally until he was identified as the person responsible for that event. I also note that despite the applicant’s belief that he was suspected of being LTTE, the authorities who came to his house did not detain or question any of his relatives about his LTTE involvement. Further, although the applicant claims that the CID has a file on him, he has not claimed that he had to register or report when he returned to Kilinochchi, or that the CID showed any interest in him before the clearing incident. As the applicant was not at home when the authorities first came, it is plausible, and I accept, that the authorities came back on one or two occasions before being told that the applicant was in India. I am satisfied that these visits were in relation to the land clearing and that they do not indicate the authorities have any adverse security interest in the applicant.
The applicant pointed out, accurately, that this passage only addresses the aspect of the claim that arose from the applicant’s involvement with the LTTE, and did not address the aspect of the claim that arose purely from the applicant clearing his family’s land after the authorities told him not to. It does not assist the Minister.
The Minister invited the court to infer that the Authority did not accept that the authorities had threatened to kill the applicant for clearing the land near the airport because the authorities had left without detaining or interrogating the applicant’s relatives. However, what the Authority actually said at paragraph 27 of its reasons for decision was that:
… the authorities who came to his house did not detain or question any of his relatives about his LTTE involvement. … (emphasis added)
Again, the Authority was dealing with risks to the applicant because he had worked for the LTTE, not separate risks to the applicant because he had cleared land. I do not see any proper basis to draw the inference proposed by the Minister.
Finally, the applicant submitted in paragraph 38 of his written submissions that:
Further and alternatively, should the Court form the view that this integer was not analysed in any detail because the IAA formed the view it was it was (sic) not material to its decision, the Court should conclude that this finding was irrational and one at which no other rational decision maker could arrive,22 having regard to the central importance of this integer of the applicant’s claim.
FN 22:Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ).
I consider that the Authority did not deal with the claim that the applicant might be killed for clearing his land, but should have, because the claim was clearly raised. I do not see how the Authority could have thought that it was not material to its decision. The Minister argued that the claim was not relevant to the Authority’s decision, because there was “precious little” evidence in support of it. That does not excuse the Authority from considering the claim.
Ground 2 is made out.
CONCLUSION
As both of the applicant’s grounds have been made out, the Authority’s decision will be set aside with costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 5 July 2023
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