FBK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 943
•25 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FBK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 943
File number(s): MLG 2483 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 25 October 2023 Catchwords: MIGRATION – decision of the Immigration Assessment Authority – whether the Authority erred in applying s 473DD of the Migration Act 1958 (Cth) – whether Authority took finding under s 473DD(b)(i) into account when considering whether new country information met criterion of exceptional circumstances in s 473DD(a) – whether the Authority’s assessment of the applicant’s claim to fear harm as a former LTTE supporter was premised on unwarranted assumptions as to the behaviour of the Sri Lankan authorities – no error disclosed – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 473DD. Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37.
SZHYH v Minister for Immigration and Border Protection (No 3)(2019) 165 ALD 463; [2019] FCA 589
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 3 October 2023 Date of hearing: 3 October 2023 Place: Melbourne Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2483 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FBK17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTRAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 OCTOBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The amended application for judicial review filed on 6 September 2023 be dismissed.
3.The applicant pay the first respondent’s costs, fixed in the amount of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 17 November 2017 and amended on 6 September 2023, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 3 November 2017, pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority enters a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a Tamil Hindu citizen of Sri Lankan who arrived in Australia as an unauthorised maritime arrival on 18 October 2012.
On 20 February 2017, the applicant made a valid application for the visa with the assistance of a lawyer (CB 49-89). The applicant identified his claims for protection in an accompanying statutory declaration dated 10 February 2017 (CB 90-105). The applicant claimed he had a fear of persecution arising from his involvement with the Liberation Tigers of Tamil Eelam (LTTE) between 2005 and 2009, during which time he provided food and passed on information to help the LTTE evade the Criminal Investigation Department (CID). Prior to his departure to Australia in 2012, the applicant was detained by the CID on several occasions and ordered to report to the CID office. The applicant was questioned about the location of LTTE weapons, bases and hide-outs and during at least two of these interactions, was physically assaulted by CID officers. On one occasion, the applicant was put in an army uniform and taken to a location (the Pillaiyar Temple) where most of the people gathered were LTTE members. The impetus for the applicant to leave Sri Lanka came after some CID officers approached him and asked him questions about his brother, who had strong links to the LTTE.
The applicant claimed that although the LTTE was no longer operating, many people were still being kidnapped and that the authorities were keeping an eye out for any potential LTTE uprisings. The applicant apprehended that his ties to the LTTE would be detected upon his return to Sri Lanka and he would be tortured, imprisoned or possibly killed.
On 24 May 2017, the applicant’s representative provided written submissions and further material, including country information, to the Department (CB 129 – 170). In the cover email, the significance of the information was identified as “point[ing] to the fact there remains in Sri Lanka, a sense of hyper-vigilance as to any possible LTTE or Tamil Separatist resurgences. It further evidences the fact that Sri Lankan Tamils with even the most tenuous of connections in the past to the LTTE remain very much at risk of harm” (CB 130).
On 30 May 2017, the applicant attended an interview with the delegate (CB 126-128).
On 14 July 2017, the applicant’s representative provided further country information to the Department (CB 171-180). The covering email identified the significance of the information in the same terms as the cover email sent on 24 May 2017. It was also provided to demonstrate “that the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department most heavily relies on are not entirely accurate” (CB 171).
On 28 July 2017, the delegate made a decision to refuse the applicant the visa (CB 182-200). Amongst the findings recorded by the delegate was that the applicant had assisted members of the LTTE between 2005 and 2009 in low-level activities (CB 189). However, in substantial reliance on the “Sri Lanka – Country Information Report” published by the Department of Foreign Affairs and Trade on 14 January 2017 (DFAT Report) which was said to “indicate a marked improvement in the economic and security situation for Tamils in Sri Lanka since the election of President Sirisena in January 2015”, the delegate found that the applicant’s profile would not be of interest to Sri Lankan authorities (CB 190).
On 4 August 2017, the matter was referred to the Authority for a review under Part 7AA of the Act (CB 218 – 219).
On 25 August 2017, the applicant’s representative provided written submissions to the Authority (CB 228-235) that were responsive to “errors made by Delegate in assessing the Applicant’s Profile” (CB 229). One of these “errors” related to the delegate’s use of country information. The written submission addressed this (in part) as follows, with emphasis in original (CB 233-234):
We submit there is very much a real and foreseeable risk of harm to the applicant, should he be returned to Sri Lanka. In fact, the 2017 DFAT report confirms that Sri Lankan security forces maintain effective control throughout Sri Lanka and it is unlikely that individuals would be able to relocate internally with any degree of anonymity. In particular, the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returned IDPs to the north and east. Sri Lanka remains the leading country in torture. The level of monitoring has reduced under the Sirisena Government but some individuals have reported that their movements continue to be recorded. We refer you to the attached recent country information which evidences these submissions. We submit that any references to improvements in the state of affairs in Sri Lanka under the new Government are unreliable and inconsequential, as these improvements cannot be equated to safety. There is no country information available which says that Tamils are no longer persecuted, and according to the 2017 Amnesty International Report, there continues to be a real risk or persecution on the applicant’s return to Sri Lanka. The 2017 Human Rights Watch report has raised human rights issues in Sri Lanka, including “…the wide use of torture and the lack of security sector reform, notably the failure to repeal the draconian Prevention of Terrorism Act. It highlights the government’s poor record in investigating and prosecuting emblematic cases of killings, enforced disappearances, and torture during and since the armed conflict, and in bringing an end to longstanding impunity”. In fact, in a report by the ITJP which has recently been released in July 2017, it has been found that the torture and rape of Tamils in Sri Lanka has continued into 2017 and is still very much common practice, contrary to the findings in the February 2017 DFAT Report. This was provided but not considered by the Delegate.
The applicant’s legal representative followed up this submission with a further email on 31 August 2017 which referred to previous correspondence and attached “additional country information” in support of the applicant’s review application (CB 236). The country information consisted of extracts from various publications across the period March 2017 up to and including 27 August 2017 which had been organised by the applicant’s representative under different headings (CB 237-264).
Under the heading “Concluding Remarks on New Country Information” the representative wrote, with emphasis in the original (CB 263-26):
We submit that this information points to the fact that there remains in Sri Lanka, a sense of hyper-vigilance as to any possible LTTE or Tamil Separatist resurgences.
It further evidences the fact that Sri Lankan Tamils with even the most tenuous of connections in the past to the LTTE remain very much at risk of harm. This is regardless of the length of time they have spent outside of the country because the rigorous checks at the Airport on their arrival will inevitably alert the relevant authorities to that person’s entire history once a name and citizenship check has been conducted.
The information clearly shows that the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department most heavily relies on are not entirely accurate.
We submit that this new information should be taken into consideration when determining our client’s application.
On 3 November 2017, the Authority affirmed the delegate's decision and produced a written statement of decision and reasons (Reasons) (CB 268 – 290).
THE DECISION OF THE AUTHORITY
The grounds of application identified by the applicant in his amended application filed on 6 September 2023 direct attention to two aspects in particular of the Authority’s decision. The first concerns the Authority’s assessment of “new information” (the subject of ground one).
The Authority identified the information before it at [3] to [9] of the Reasons. The paragraphs that engage with the applicant’s first ground ([4]-[7]) state:
4.On 25 and 31 August 2017 the IAA received submissions from the applicant’s representative who, I note, is the same person who represented the applicant at the primary stage. The submissions contain arguments responding to the delegate’s decision. I am satisfied this may be described as ‘argument’ rather than information. In part, the documents also reference case law, country information and claims that were before the Ministerial delegate and are already before me.
5.The submissions also contained an extensive amount of country information which was not before the delegate and which constitutes new information. Broadly, the information relates to the treatment of Tamils, persons with real or perceived LTTE links, returnees and detainees in Sri Lanka and about the performance and actions of the Sirisena government and relevant authorities relating to security, human rights and reconciliation issues.
6.The submission argues that the delegate relied too heavily upon the DFAT report which the representative describes as ‘not entirely accurate’. She argues the country information in the submission indicates there remains in Sri Lanka a sense of hyper-vigilance of possible LTTE or Tamil Separatist resurgences and further evidences that Sri Lankan Tamils with even the most tenuous connections in the past to the LTTE remain at risk of harm regardless of the length of the time they have spent outside the country as checks conducted upon return will reveal a person’s entire history. However I am not satisfied that this, nor any other part of the submissions explains why the country information which predates the delegate’s decision could not have been provided earlier, nor why it amounts to credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. On the basis of the information before me, the applicant has not satisfied me that the information falls within s. 473DD(b)(i) or s. 473DD(b)(ii) and nor am I satisfied that there are exceptional circumstances to justify their consideration.
7.In terms of the new country information that post-date the delegate’s decision, I accept this information could not have been provided before the decision. However in my view, the fact that information postdates the decision does not of itself establish that there are exceptional circumstance to justify consideration of the new information. Again, I note it may be described as general country information. I note the representative’s submission aims to counter-balance what she claims is an over-reliance on DFAT information and I understand her intention is to ensure the IAA has up-to-date country information before it. However I note that the representative had already demonstrated an engagement with the DFAT report in an earlier submission and I am satisfied that there was ample opportunity to raise specific concerns with that report and to provide additional information for consideration prior to the decision. Overall, the information has been provided to support the contention of a claimed set of circumstances already addressed by the representative in earlier submissions and therefore already before the delegate, and to further evidence points which I am satisfied were already made by the representative to the delegate. I am not satisfied that exceptional circumstances exist to justify considering this new information.
The applicant’s second ground challenges findings made by the Authority at [17] and [22] of the Reasons which operated on the applicant’s claim to apprehend relevant harm because of his profile as a LTTE supporter. These passages read:
17.I accept that in 2008 the applicant became aware that the authorities were searching for him. I accepted he avoided them but after his aunt was taken and questioned at an army camp, he turned himself in. I accept the applicant was then questioned about his brother and his aunt and interrogated for information about LTTE hideouts and weapons locations. I accept on this occasion he admitted to passing the LTTE food and information but denied further knowledge. I accept he was required to report on several occasions, that he was sometimes beaten, that on one occasion he led the authorities to locate a stash of weapons and that he was pressured for further information. I accept he and other young Tamils in the area were also used as human shields from time to time on operations. I accept the army made the applicant wear an army uniform to the local temple and took photographs of him on their operations and that this led the applicant to lose trust with the LTTE and their supporters in the village. I accept he was required to report periodically and that they threatened to kill him if he did not cooperate with their enquiries and operations in 2008.
…
22.Country information indicates that towards the end of the conflict, a large number of LTTE members were arrested and detained by government security forces following their surrender or capture, the majority of whom were sent for rehabilitation and a smaller number prosecuted. Many civilians were also questioned or monitored for any possible LTTE activity and any form of civil resistance or anti-Government sentiment. Since the end of the war, thousands of LTTE members (former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE) have been arrested and detained in rehabilitation centres. On the evidence, although the authorities had frequent interactions with the applicant in 2007 and 2008, after holding him for a week in 2008 and releasing him, he was never formally arrested, detained again or sent for rehabilitation and there were no repercussions when he failed to report. I note he was required to report on several occasions in 2008 and was taken on operations that year but on the applicant’s own evidence I accept he was taken on these operations for the authorities’ own safety while investigating suspected LTTE locations and that he was able to come and go between reporting appointments even when they were planning an operation with the applicant that same night. I consider that if the authorities had considered him to be an LTTE member, or a person otherwise of concern in connection with LTTE links, they would have held him in detention, arrested him or sent him for rehabilitation. I am satisfied that the authorities had opportunities to do this in Jaffna in 2007 and 2008, in Mallawi when they became aware of his presence there and questioned his boss and again in Jaffna during his four to five month long return in 2012.
PROCEEDINGS IN THIS COURT
In accordance with procedural orders made by the Court, the applicant filed an amended application and written submissions on 6 September 2023. The Minister filed written submissions on 15 September 2023.
The amended application identifies the following two grounds of review:
1.The IAA erred in applying s 473DD of the Migration Act 1958 in respect of country information which came into existence after the delegate’s decision by:
a.Constructively failing to consider the circumstances that the new information could not have been provided to the delegate at the time of the delegate’s decision;
b.By unreasonably, irrationally or illogically reasoning that there were no exceptional circumstances because the Applicant had the opportunity to pre-empt the DFAT report upon which the delegate relied with information that had not even come into existence.
2.The IAA made unwarranted assumptions in the form of:
a.An apparent but false dichotomy, for the purposes of considering whether the Applicant faced a real chance of harm, between its finding that authorities had ‘beaten’ and ‘threatened to kill’ the Applicant, and not having been ‘formally arrested, detained again or sent for rehabilitation’ and/or
b.How the authorities would necessarily behave in respect of a person suspected of LTTE links.
GROUND ONE
Legal framework and principles
Ground one of the amended application is concerned with the Authority’s exercise of the discretion contained in s 473DD of the Act which provides:
473DD Considering new information in exceptional circumstances
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.
The parties agree that as a statement of principle, the following paragraphs taken from the plurality judgment in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17) identify the framework against which the approach taken by the Authority should be assessed.
11Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
The submissions of the applicant
Against this background, the applicant submits that paragraph 7 of the Reasons (reproduced at [15] above) read fairly and as a whole reveals a misapplication of s 473DD in that although the Authority expressly engaged with the novelty of the new country information in the first sentence to that paragraph, thereby assessing it by reference to s 473DD(b)(i) of the Act, its character as “information that could not have been provided to the Minister, before the Minister made the decision under s 65” was overlooked or disregarded when the Authority purported to consider whether there were exceptional circumstances to justify considering the new information (the s 473DD(a) analysis).
The applicant instead described the reasoning deployed by the Authority as reflecting the justification that the lawyers for the applicant had already had an opportunity to respond to what had been said in the DFAT Report, in the form of the submissions provided to the delegate. However, this analysis failed to grapple with the fact that the new information relied upon had not come into existence at the time of the submissions to the delegate; this being the very matter to which s 473DD(b)(i) is directed.
The applicant submits that what the Authority failed to appreciate was that the applicant’s representative, by their correspondence sent on 25 and 31 August 2017, was seeking to provide new or “fresh” evidence in aid of the point made earlier (but repeated in the context of the Part 7AA review) that the DFAT Report was unreliable. The Authority approached the submission exercise on the basis that the representative was simply providing more material as further evidence of the same point. The difference was subtle but important.
The applicant submits that the error in the approach adopted by the Authority is also susceptible to characterisation as involving unreasonable, irrational or illogical reasoning, in that it could not be said that the logic applied by the Authority could properly demonstrate that it had applied the correct statutory test. It was unreasonable for the Authority to reason that the new information should not be considered because the applicant somehow had the opportunity to pre-empt the information despite it not having yet come into existence.
The submissions of the Minister
The Minister submits that ground one must be rejected in circumstances where the Reasons of the Authority at [7] disclose that it did precisely what it was required to do by reference to the legal principles identified by the High Court in AUS17. In other words, the Authority made a direct finding about s 473DD(b)(i) and then expressly factored this finding into its subsequent assessment of s 473DD(a) when it said: However, in my view, the fact that information postdates the decision does not of itself establish that there are exceptional circumstances to justify consideration of the new information.
The Minister submits that the balance of the Authority’s paragraph dealing with s 473DD contains an evident and intelligible justification for its finding that there were not exceptional circumstances to consider new information. It was said that when read fairly and in context, the Authority considered that the new country information provided by the applicant simply provided further support, or established points already made, by the applicant’s material. Put differently, the concern of the Authority was that the new country information traversed the same ground as earlier country information. On either analysis, it was clear that the Authority was cognisant of the character of the new information as having been published after the date of the delegate’s decision and that it was being used to rebut information contained in the DFAT Report.
Consideration
I am not persuaded that the Authority erred in its application of s 473DD of the Act. The reason for this conclusion reflects the manner in which the applicant (through his representative) presented the new country information to the Authority. In its presentation, the significance of the country information was identified not for its novelty (in the sense that it post-dated the decision of the delegate) or because it provided evidence of a change in circumstances not disclosed by the earlier country information. Instead, the new country information was provided on the explicit basis that it constituted “further evidence” of the point that had been made in submissions to the delegate dated 14 July 2017 that Sri Lankan Tamils with even the most tenuous connections in the past to the LTTE remain at risk of harm and that the situation in Sri Lanka, as described in the DFAT Report, was not entirely accurate.
The Authority correctly appreciated the basis upon which the new information was provided to it when it referred to the information as “additional” (a synonym for “further”). Its treatment of the new information occurred contextually in circumstances where the entire suite of country information provided by the applicant’s representative, including when the application was before the delegate, was capable of being characterised as “recent”. In this respect, although it was objectively the case that the new information satisfied s 473DD(b)(i) of the Act, its novelty, relatively speaking, was modest in the scheme of the country information (as a whole) considered by the Authority.
I am also not persuaded that the reasoning adopted by the Authority was unreasonable, irrational or illogical. This is because I reject the thesis that underscores this ground of review, namely, that the Authority proceeded on the basis that the applicant had the opportunity to pre-empt the DFAT Report with information that had not even come into existence. Instead, the Authority reasoned (again responsive to the presentation by the applicant of the new information) that the applicant had already been afforded the opportunity to put before it country information concerning the reliability of the DFAT Report and that the new information, not being qualitatively different or demonstrating a change in circumstances, was merely repetitive of an earlier made and subsequently repeated, point.
GROUND TWO
The submissions of the applicant
The applicant submits that the Authority’s Reasons at [17] and [22] reveal that it drew a false dichotomy between its acceptance that the applicant had been beaten and threatened with death (refer Reasons [17]) and the acts or consequences of being “formally” arrested, detained again and sent for rehabilitation (refer Reasons [22]) for the purpose of considering whether the applicant faced a real chance of harm. The applicant submits that where no explanation is given and where no probative basis in the evidence exists to distinguish between the two sets of adverse action, the Authority’s analysis reflected or was premised upon, “unwarranted assumptions” about the behaviour of authorities which in turn bespeaks of illogicality or unreasonableness. Indicative especially of this approach the applicant submits that there was no basis in the evidence for the “unwarranted assumption” that “if the authorities had considered [the applicant] to be …..a person otherwise of concern in connection with LTTE links, they would have held him in detention, arrested him or sent him for rehabilitation” (refer Reasons [22]).
The applicant submits that the process of reasoning adopted by the Authority has some parallels with that identified by Allsop CJ in SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 (SZHYH). Among the examples of “unwarranted assumptions” made by the Tribunal in that case were that if the appellant’s passport had not been confiscated then he could not have possibly been granted bail as he had claimed, and that the appellant’s account of how he was arrested two weeks after anti-government protests rather than immediately was not credible for that reason.
The submissions of the Minister
The Minister, referring to SZHYH, noted that in that case the error identified by the Court involved making assumptions where “[t]here was no basis in the country information or any other material to form that assumption.”[1]
[1] SZHYH at [46] and to similar effect, at [48].
Here, instead, the Authority identified the country information which formed the basis of the conclusions it drew in the opening sentences of its Reasons at [22] (refer [16] above). The Minister submitted that this country information suggested that both towards the end of the conflict and in the period after the end of the war, a large number of LTTE members had been arrested and detained in rehabilitation centres. It was said that this information provided a logical basis for the Authority to conclude that, if the authorities had considered the applicant to be an LTTE member, “they would have held him in detention, arrested him or sent him for rehabilitation” (also at Reasons [22]).
In this respect and by reference to the following passages taken from the court book, the Minister submitted that there was a symmetry between the case put by the applicant in support of his visa application and review and the findings recorded by the Authority at Reasons [22]. The references included:
i. In the applicant’s statutory declaration accompanying the visa application and in the context of a reference to an LTTE shooting of an army commander the statement that “if they [army personnel] thought you might have been associated with the shootings, they arrested you on the spot” (CB 93 at [16]);
ii.In the applicant’s statutory declaration and in the context of describing what would happen to him on his return to Sri Lanka, the statement that “They will know that I was a part of the LTTE and its various anti-Governmental activities for many years and based on this, they will arrest, harm or kill me” (CB 103 at [7]).
iii.In submissions provided to the Department on 23 May 2017, the reproduction of and reliance on country information taken from the DFAT Report which said: “Since the end of the conflict, thousands of LTTE members have been arrested and detained in rehabilitation centres. Generally, this includes former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict.
DFAT assesses that…any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre” (CB 162).
The Minister made the further submission that the reasons of the Authority revealed that it had not simply been concerned with how the Sri Lankan authorities had treated the applicant in 2008. Instead, it had accepted that he had been the subject of harassment and harm from the authorities in 2007 and 2008 but found that their interest in him had decreased over time. On the Authority’s reasoning, this was because after his last interaction in 2008, the applicant was never formally arrested, detained again, or sent for rehabilitation, in circumstances where the Sri Lankan authorities “had opportunities to do this”.
Consideration
I am not persuaded that the Authority’s findings recorded at [22] of the Reasons are based on or contain “unwarranted assumptions” about the behaviour of the Sri Lankan authorities which might justify a conclusion that the reasoning employed by the Authority was unreasonable, irrational or illogical.
What is recorded at [22] must be viewed in context. This includes not only the findings of adverse treatment set out at [17] but the anterior findings at [19] and [21] that over time, the CID’s interest in the applicant had decreased and was “low-level”. These findings are not challenged by the applicant and reflect the view taken by the Authority that aspects of the applicant’s claim, including that he could travel with permission obtained from the CID to Jaffna in around 2008, and that he would return to Jaffna in early 2012 if he had earlier fled there, were implausible or inconsistent with the thesis that he remained of ongoing interest to the authorities.
The Authority’s findings at [22] are therefore unremarkable. They build on the earlier findings about the diminishing profile of the applicant and are additionally informed by country information taken from the DFAT Report which supplied the probative basis for making projections about the behaviour of Sri Lankan authorities that was absent in the decision considered in SZHYH.
CONCLUSION
For the reasons set out above I will make orders that the applicant’s application (as amended on 6 September 2023) be dismissed and that the applicant pay the Minister’s costs in the fixed amount of $8371.30
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 25 October 2023
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