Feg17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 696
•2 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FEG17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 696
File number(s): MLG 2571 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 2 August 2024 Catchwords: MIGRATION – protection visa – application for judicial review of decision of Immigration Assessment Authority –where the Authority was not satisfied of exceptional circumstances and did not consider certain new information pursuant to s.473DD – where the Authority accepted various of the Applicant’s claims to have suffered serious harm in the past but found the chance of persecution to be remote and no real risk of significant harm on return to Sri Lanka – whether Authority’s decision affected by a failure to consider relevant considerations or an integer or material fact or information, an error of law, legal unreasonableness or illogicality – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.5J, 36, 65, 473BA, 473CC, 473DA, 473DB, 473DD, 473EA, 474, 476) Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80
SZSZW v Minister for Border Protection [2015] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of hearing: 5 February 2024 Place: Melbourne Counsel for the Applicant: Mr Khron Solicitor for the Applicant: Ambi Associates Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2571 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SRIRAM RAMACHANDRAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
2 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent to the proceedings be amended to “Minister for Immigration and Multicultural Affairs”.
2.The amended application filed 16 January 2024 be dismissed.
3.The Applicant pay the First Respondent’s costs in the amount of $8,371.30.
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 Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka who sought protection in Australia primarily on the basis of claims to fear that, on return, harm would be occasioned because of his familial links to militant groups and because he is a young Tamil Hindu male and asylum-seeker who fled Sri Lanka illegally.
The Applicant now seeks judicial review of an administrative decision to affirm an earlier decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
The Applicant is of Hindu faith, Tamil ethnicity and a citizen of Sri Lanka. At the time of these reasons, he was 30 years of age.
On 4 November 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 16 September 2016, the Applicant applied for a safe haven enterprise (subclass 790) visa (subject of this application, the protection visa).
On 12 April 2017, a delegate of the First Respondent refused to grant the protection visa.
On 10 November 2017, the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on review.
The Authority’s decision
The decision maker’s reasons commenced by identifying the materials it had considered and not considered in conducting its review: at [4] to [11].
The Authority considered the Applicant’s request for an interview and gave brief reasons for its decision not to invite the Applicant for an interview: at [12].
The Applicant’s claims were then summarised: at [13].
The Authority conducted its “refugee assessment”: at [14] to [60].
Pertinent to the grounds of review, the Authority accepted the Applicant as a consistent and credible witness (at [17]) and accepted certain of the Applicant’s claims, including the claims that:
(a)The Applicant’s brother in law: had worked for the Liberation Tigers of Tamil Eelam (LTTE) and travelled between Batticaloa and Jaffna during the period 2002-2004; went missing in 2004; and, according to information provided by the brother in law’s family to the Applicant’s sister, was captured in 2009 and held in detention until 2012: at [18].
(b)The Applicant’s cousin: joined the LTTE and was captured in March 2009; was released to a rehabilitation centre, from where he was released in July 2011 but continued to be of interest to the authorities and had fled Sri Lanka to avoid the authorities’ attention and/or the court proceeding: at [19]-[21].
(c)The authorities visited the Applicant’s family and asked questions about his brother in law and cousin and questioned and threatened the Applicant on numerous occasions (including when he was aged about 17 years, which event scared him and caused him to hide and stay with friends): at [22]-[24].
(d)The Applicant was arrested, questioned and subjected to threats and violence on 2 occasions in 2012, on both occasions in relation to his cousin. Further, that the Applicant was scared for his safety and decided to flee Sri Lanka after the second incident: at [25]-[27].
(e)The authorities had made attempts to contact the Applicant and are likely to still be seeking the Applicant to make a statement about his cousin and his cousin’s extant court proceeding, and the Applicant may be required to make a statement (as a potential witness, but not as a suspect or in any way involved) in relation to his cousin’s activities: at [28]-[29] and [31].
(f)The Applicant had left Sri Lanka in breach of the Immigrants and Emigration Act (I&E Act) and would be screened and investigated on return to Sri Lanka, as well as charged and fined under the I&E Act and may be detained for a short period: at [50]-[55].
However, the Authority did not accept certain of the Applicant’s claims, including the claims that an arrest warrant had been issued against the Applicant or that the Applicant was otherwise at risk of arrest or detention or would be treated differently to other returning asylum seekers at the airport on his return: at [30] and [53].
The Authority considered the country information that was before it in the context of the Applicant’s claims which had been accepted. In various parts of the reasons, the Authority referred to Department of Foreign Affairs and Trade (DFAT) information which it said indicated that the situation in Sri Lanka had greatly improved since the election of a new government in 2015. For example, at [31], the Authority considered this information supported a finding that the new government prioritised human rights and reconciliation and had committed to constitutional reform.
The Authority also considered other sources of country information including that which contained reported: concerns about the policing framework; instances of torture carried out by police including during regular criminal investigations other cruel, inhuman or degrading treatment; and, still as of 2015 and 2016, arbitrary arrest, detention and torture including to indicate that Tamils suspected of links to the LTTE were arrested and detained and could be held without charge for extended periods: at [32]-[33].
Ultimately, the Authority was not satisfied that the Applicant faced a real chance of harm or serious harm from any of: his past experience with authorities during an active investigation into the Applicant’s cousin; the Applicant’s real or imputed association with the LTTE or his association with his brother in law and cousin; his status as a Tamil male, as a Hindu, on the basis of his age, ethnicity or geographical location; on account of the imposition of a fine and/or in a brief period of detention on return while waiting to be taken to a court for having departed Sri Lanka illegally: see [35], [49], [55]-[58].
The Authority concluded that the Applicant had no adverse security profile with the authorities and did not face a real chance of harm arising from being sought to provide a statement, and that it was satisfied that the cumulative circumstances did not give rise to a real chance of serious harm and the Applicant did not meet the definition of “refugee” in the Migration Act 1958 (Cth) (Act) and therefore the criterion at s.36(2)(a): at [59] and [60].
The Authority conducted its “complementary protection assessment”: at [61]-[67].
Essentially in reliance on its findings in relation to the refugee assessment, the Authority summarised that having regard to the circumstances and profile of the Applicant it did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm and therefore did not meet the “complementary protection” criterion at s.36(2)(aa) of the Act: at [67].
APPLICATION BEFORE THE COURT
On 27 November 2017, the Applicant filed the originating application for judicial review of the Authority’s decision and a supporting affidavit sworn that same day.
On 22 December 2017, a response was filed on behalf of the First Respondent contending that the decision of the Authority was not affected by jurisdictional error.
Various procedural orders were then made.
On 16 January 2024, the Applicant filed an amended application. The amended application identified 3 grounds of review in the following terms (particulars not pressed at hearing excluded):
1.The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
PARTICULARS
(a) The Authority did not consider material and information in the Applicant's submission provided to the Authority on 19 May 2017, including the media reports, statement and documents. (IAA Decision and Reasons [4]-[11])
(c) The Authority did not consider the Applicant's claim and evidence that he was forced to strip naked when he was questioned, threatened with a rifle and beaten.(CB 9)
2.The Authority fell into jurisdictional error in that it erred in interpreting or applying the law and thereby did not give procedural fairness to the Applicant.
PARTICULARS
(a) The Authority erred in interpreting or applying sections 473DC or 473DD of the Migration Act 1958 ("the Act") in that it did not consider all the material and information in the Applicant's submission provided to the Authority on 19 May 2017, including the media reports, statement and documents. (IAA Decision and Reasons [4]-[11])
(d) The The Authority's conclusions that the Applicant was not a person owed protection under sections 36(2)(a) and 36(2)(aa) show that it erred in interpreting or applying the terms "well-founded fear of persecution" in section 5H(l)(a) of the Act, "real chance" in section 5J(l)(b) of the Act, and "real risk" of significant harm within the meaning of section 36(2)(aa) despite:
(i) the evidence of incidents of torture in Sri Lanka;
(ii) the evidence of an entrenched culture of torture in Sri Lanka;
(iii) the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka;
(iv) the findings of the Authority which accepted the Applicant's history of himself, his repeated detentions, interrogations, and beatings, and of his cousin and brother in law;
(v) the investigation of the Applicant which the Authority found would occur were he to return to Sri Lanka.
3.The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.
PARTICULARS
(a) Further or in the alternative to Particular (d) to Ground 2, the Authority found that the Applicant had been detained, taken to a military camp, questioned about his cousin J (who was in the LTTE, fled Sri Lanka and was charged), and was beaten. It noted reports by the UN of torture by police. Yet the Authority concluded there was only a remote chance the Applicant would suffer detention violence or other harm should return to Sri Lanka. (IAA Decision and Reasons [25]-[34])
(sic.)
On 16 and 31 January 2024, the Applicant filed an outline of submissions and a list of authorities (respectively).
On 22 and 25 January 2024, the First Respondent filed written submissions and a list of authorities (respectively).
The matter proceeded to final hearing before the Court as presently constituted on 5 February 2024. The Applicant was represented by counsel and the First Respondent was represented by a solicitor advocate.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considered ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
The Act governs the conduct of a review by the Authority of a “fast track reviewable decision”.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act is arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commences with a self-described “simplified outline” at s.473BA including that Part 7AA provides a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant cannot apply for review directly to the Authority and decisions of this kind are otherwise generally not reviewable under the Act. In conducting its review, the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3. The Authority does not hold hearings and is required to conduct its review on the papers save that, in exceptional circumstances, it may consider new material and may invite a referred applicant to provide, or comment on, “new information”.
Division 3 of Part 7AA, which concerns the subject, “Conduct of review”, is arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provides that Division 3 (among two other provisions which are presently immaterial) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provides that, subject to Part 7AA, the Authority must review a fast track reviewable decision that has been referred to it by considering the review material provided to it and must do so “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerns how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
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.
By s.473EA of the Act, a decision of the Authority on Part 7AA review must be accompanied by a written statement which sets out both “the decision” on review and “the reasons for the decision”.
GROUND 1 – FAILED TO CONSIDER RELEVANT CONSIDERATIONS
By his first ground of review, the Applicant claimed that the Authority engaged in an error of jurisdiction by not considering relevant considerations including claims, integers of claims or material questions of fact or information.
New information not before the delegate was not considered
The first particular related to the Authority’s findings (at [6] of the reasons) that certain “new information” in the Applicant’s submission of 19 May 2017, which was not before the delegate, could not be considered because “exceptional circumstances” did not exist as to justify its consideration. The Applicant contended it was not reasonable for the Authority not to find exceptional circumstances in reliance on generalised country information which post-dated the delegate’s decision and tended to contradict the generalised country information on which the Authority relied to dismiss the Applicant’s claims.
The First Respondent submitted that this ground was misconceived and the Authority had correctly applied s.473DD. Further, that the Applicant otherwise invited the Court to engage in impermissible merits review.
In the critical paragraph, the Authority considered 4 media reports referenced in the Applicant’s submission of 19 May 2017, each of which post-dated the delegate’s decision. The Authority found that these reports could not have been provided to the delegate but contained general information about the general situation in Sri Lanka and, in one case, the conditions faced by prisoners of war. Further, that the information did not refer to the Applicant or his claimed circumstances. The Authority noted the currency of the information before the delegate and range of sources behind that material and concluded that it was not satisfied that there were exceptional circumstances as to justify the Authority’s consideration of this new information.
There is no question that the new information subject of this ground was not considered. Adopting a beneficial reading of the Applicant’s first and second grounds, it falls to determine whether the Authority engaged in jurisdictional error in deciding not to consider the information pursuant to s.473DD.
The statutory context is important in that, as earlier referenced, Division 3 of Part 7AA provides an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. Ordinarily, and with limited exception, the Authority must conduct its review on the papers and on the basis of the review material provided by the Department to the Authority pursuant to s.473DB.
The Authority may only consider new information that was not before the delegate if the criteria at s.473DD are met. Such power to be exercised within the bounds of reasonableness, and where an unreasonable failure to exercise a power pursuant to Division 3 of Part 7AA can render invalid a purported performance by the Authority of the duty imposed on it by s.473CC to conduct a review and either affirm or remit the decision under review: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1) at [25]-[27], see also Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 per Gageler, Keane and Nettle JJ at [21].
It is uncontroversial in these proceedings that the Authority correctly assessed the 4 media articles that post-dated the delegate’s decision as “new information” that could not have been provided to the Minister before the delegate’s decision was made. Accordingly, the criterion at s.473DD(b)(i) was established.
Notwithstanding that the alternative limb at s.473DD(b)(i) was established, the Authority then turned to consider the generic and non-personal nature of the new information subject of this ground. Whilst not expressly with reference to the provision, plainly enough it did so (as it was required to do) in its assessment of whether there was “credible personal information” which may have affected the consideration of the Applicant’s claims pursuant to s.473DD(b)(ii) and before embarking on the “exceptional circumstances” assessment at s.473DD(a): AUS17 v Minister for Immigration and Border Protection [2020] HCA 37.
The Authority concluded its consideration of the new information within the mandatory framework of s.473DD by weighing up whether there were “exceptional circumstances” to justify it pursuant to s.473DD(a) and, at that point of the reasons, expressly placed some weight on the currency of the information before the delegate as well as the range of sources behind that material.
The Authority’s reasons disclose that it approached its task consistent with the legislative framework and in the appropriate sequence on the established authority.
In respect of the contention that unreasonableness was said to be demonstrated by the fact that the country information before the delegate (and on which the Authority placed emphasis in relevantly reasoning at [34]) was also generic and one-sided, the Authority’s findings about the generality of the subject new information was but one part of its reasoning and, in my view, directed at limb (b)(ii). The Authority considered the breadth and currency of the sources of information that were before the delegate in weighing up whether there were exceptional circumstances to justify its consideration of the new information subject of this ground 1, particular (a).
For completeness having regard to the manner in which the argument was put, it may also be observed that, on the information that was considered by the Authority, the Authority noted a series of propositions which would tend against a finding of a wholesale improvement in the Sri Lankan situation (including in relation to ongoing reports of torture and mistreatment by police) and reflected the ongoing challenges and risks post-the change of government. In my opinion, the information considered was not obviously one-sided. As much appeared to be conceded by the Applicant in respect of the remaining particular to this ground and his second and third grounds, which respectively relied on the DFAT country information that was before the delegate about the continuation of torture and abuse of human rights and which was said to establish an entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences, after the change of government in 2015.
In any event, and to the extent that the entirety of the reasoning at [6] is relevant to understand the Authority’s decision not to consider the new information subject of this ground pursuant to s.473DD, the Authority’s reasons were logical and intelligible. That another decision maker might have determined the question differently is not to the point. Absent a sufficient explanation as to why it was so unreasonable (to the requisite standard) and therefore not open to the Authority to find as it did, I discern no jurisdictional error in the Authority’s decision not to consider the new information subject of this first ground particular (a).
Particular integer of the claim, material question or fact that was not considered
The second particular related to the Applicant’s claim that, before he left Sri Lanka, he was forced to strip naked in the course of interrogation, threatened with a rifle and beaten – an important incident of a further and intimate layer of abuse toward the Applicant while being interrogated and threatened by the authorities. The contention was put in terms that the claim may have been implicitly accepted by the Authority, but was not considered in the way required by law because it was not adverted to as an integer of the claim. And that the Court should find this was a material error because, were this aspect of the Applicant’s claims considered together with the DFAT report information about torture and abuse of human rights as continuing, then the Authority may well have concluded differently in respect of the ongoing risk of serious harm to the Applicant.
The First Respondent contended that this claim failed on the face of the Authority’s decision record because the Authority had expressly considered the claim or, in the alternative, had engaged with the claim to the requisite extent.
It is well established that the Authority must consider each necessary and relevant consideration and integer of the claim, and must consider each material question of fact squarely raised by the material before the Authority: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at [19]; SZSZW v Minister for Border Protection [2015] FCA 562 per Perry J at [13]-[18]; Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26 at [24] (Gummow and Callinan JJ); see also SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 at [29] per Madgwick and Conti JJ; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58].
The relevant claim was found in the expression of the Applicant’s reason for leaving Sri Lanka as it was recorded in the irregular maritime entry interview form. There, the Applicant described the most recent incident of being taken into custody and interrogated in the following terms:
I have left Sri Lanka because the CID are always taking me in for inquiries. The last time was 11/08/2012. They took me into custody and held me for 3 hours and asked me me questions. They kept the rifle on the table asking me where my cousin and brother in law was and threatened to shoot me and they made me take my clothes off and said again to tell them where my brother in law was or they would shoot me. They also hit me in the face with their hands. I decided to leave.
(sic.)
The Authority summarised this particular claim at [13], and made findings about it at [27], in terms that were faithful to the Applicant’s expression of the claim with the exception of the reference to being made to take his clothes off during the interrogation (which the Authority omitted). The Authority further accepted, at [31] and [34], that the Applicant had suffered serious harm at the hands of police and during questioning in the past but took into account that this occurred 5 years ago and the Applicant was never questioned about his own links to the LTTE and was also released (albeit on one occasion following intervention from the local village officer and a lawyer). The Authority also took into account the country information about significant change to the security and general situation in Sri Lanka since the Applicant’s departure and was satisfied that the Applicant was not himself subject of investigation nor were the authorities seeking him to extract a confession from him and accordingly there was only a remote chance that the Applicant would face detention, violence or other harm at the hands of authorities should he return to Sri Lanka.
As the Applicant accepted, implicit consideration and acceptance of the subject claim is discernible on the face of the Authority’s reasons. Although the Authority did not explicitly refer to the particular aspect of being required to take his clothes off during the interrogation of August 2012, it nonetheless found the most recent interrogation incident amounted to a past instance of serious harm. The Authority did not dismiss the prospect of such future harm upon return – to the contrary, it concluded there to be a remote chance.
Consistent with the guidance of the High Court of Australia in Plaintiff M1, the requisite level of engagement is to a degree dependent on the nature, form and content of the representations. When regard is had to the manner in which the relevant aspect of the Applicant’s claim to have been harmed during interrogation in the past was put (that is, the allegation of being made to take his clothes off during interrogation as it was recorded in the irregular maritime entry interview form and not repeated in other materials that were before the Authority), and the detail of the findings made by the Applicant (including that the Applicant was threatened with a rifle, beaten and seriously harmed during this interrogation which had occurred in the past), in my view the Authority gave the necessary consideration. Further, the Authority gave logical and intelligible reasons for its finding that, notwithstanding that the Applicant had been subject of serious harm in the past, he would not face more than a remote chance of such harm upon return to Sri Lanka and therefore did not meet the statutory criteria.
Resolution of Ground 1
For the above reasons, the first ground is not made out.
GROUND 2 – ERRORS IN APPLICATION OF THE LAW
By his second ground of review, the Applicant claimed that the Authority fell into jurisdictional error in that it erred in interpreting or applying the law and thereby did not give procedural fairness to the Applicant.
Erroneous interpretation or application of ss.473DC or 473DD
The Applicant acknowledged that this ground 2, particular (a) essentially restated the complaint at ground 1, particular (a) under the rubric of error of law. He contended that it was for the same reasons as argued in relation to ground 1, particular (a) that the Authority erred in its interpretation or application of s.473DD of the Act in not considering new information in the Applicant’s submissions provided to the Authority on 19 May 2017 – namely, the 4 media reports about the general state of Sri Lanka and especially the abuse of Tamils.
The First Respondent also relied on its submissions at particular (a) to ground 1 in asking the Court to dismiss this particular (a) of ground 2.
Beyond the contention of unreasonableness (outlined above), the Applicant has not sufficiently particularised the error of law. For the above reasons in relation to particular (a) of ground 1, I discern no error of law or otherwise in the application of s.473DD by the Authority as its reasons related to the 4 media articles referenced in the Applicant’s submissions of 19 May 2017 which post-dated the delegate’s decision.
For completeness, the Court was not addressed about s.473DC and this component of this particular (a) to ground 2 was not understood to be pressed.
Erroneous interpretation or application of meanings of “well-founded fear of persecution”, “real chance” and “real risk”
By particular (d) of the second ground, the Applicant asked the Court to find that the Authority erred in its interpretation or application of the tests at ss.36(2)(a) and (aa) despite the information and evidence before it and available to it. The particulars articulated the contentions in terms that the Authority had erred in its interpretation or application of the terms:
a)“well-founded fear of persecution” in s.5H(1)(a) and “real chance” in s.5J(1)(b) as relevant to the threshold at s.36(2)(a) of the Act; and
b)“real risk” of significant harm within the meaning of s.36(2)(aa) of the Act.
In each case, said to be “shown” by the Authority’s conclusions that the Applicant did not have such a real chance or real risk of harm on return to Sri Lanka despite the evidence and information that was before the Authority.
In support of this particular to the second ground, the Applicant pointed to the Authority’s own findings of the Applicant’s history and that of his cousin and brother in law; and the Applicant’s repeated detentions, interrogations and beatings. He contended that this was sufficient to establish the “real chance” threshold (bearing the same meaning as “real risk”) and a claim for protection on the authority in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan). The emphasis in the Applicant’s submissions was to the effect that only a small probability was required. Further, that the reason for the Authority’s findings of no real chance or real risk of harm to the Applicant was largely due to the sanguine view it took of the situation in Sri Lanka.
The First Respondent contended that this ground represented another invitation to the Court to engage in an impermissible merits review and rose no higher than an expression of disagreement with the Authority’s findings.
In Chan the High Court relevantly articulated the following principle:
In Reg. v. Home Secretary; Ex parte Sivakumaran the House of Lords (at p 1000) in considering the Convention concluded that for an applicant's fear to be well-founded "there has to be demonstrated a reasonable degree of likelihood of his persecution for a Convention reason". That would seem to be a more restrictive test than that suggested, although hardly dogmatically, by Stevens J. in Cardoza-Fonseca. Whilst alternative verbal formulations of the correct test may be useful in identifying shades of meaning, none can ever offer complete precision. Nevertheless, for the sake of uniformity of approach I should express my preference for a test which requires there to be a real chance of persecution before fear of persecution can be well-founded. It is sufficient to justify that choice to point to the fact, as does the Chief Justice in his reasons for judgment, that it is a test which has been recently expanded by this Court in another context in Boughey v. The Queen (1986) 161 CLR 10, at p 21, in a manner which is helpful in the present context. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.
(emphasis added)
The Court was also taken to the decision of the High Court of Australia in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [66]:
This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
By this ground the Applicant endeavoured to persuade the Court that the evidence of the Applicant’s claims to fear harm on return to Sri Lanka warranted a different outcome (a finding of more than a remote chance) which would have been reached were the country information about the situation in Sri Lanka and persecution of Tamils interpreted differently. The Court was invited to reach this conclusion by reconsidering the material that was before the Authority.
As earlier reasoned, the task of this Court on judicial review is confined by the statute and it is not for this Court to engage with the merits of the application. The choice and assessment of the weight to attribute to the evidence of the Applicant’s claims and the country information about the situation in Sri Lanka that were before the Authority were matters for the Authority to consider in the conduct of its de novo review.
Accepting that the threshold for establishing a “real chance” of persecution or a “real risk” of significant harm for purposes of ss.36(2)(a) or (aa) is low, there is no basis to infer an error in an application of the relevant thresholds on what is before the Court.
Resolution of ground 2
On what is before the Court, I am not persuaded that this ground identifies any jurisdictional error in terms of a misapplication of the law or consequential denial of procedural fairness as plead. The second ground is not made out.
GROUND 3 – UNREASONABLE OR ILLOGICAL
This ground was plead further or in the alternative to particular (d) of ground 2 and again there was a conceded overlap between them.
The third ground also sought to challenge the Authority’s conclusion in dismissing the claims that the Applicant was at risk of persecution or significant harm on return to Sri Lanka again with regard to the findings the Authority had made and the evidence and on the country information that was before the Authority.
The First Respondent reiterated that this ground effectively invited the Court to undertake an impermissible merits review and that the Authority’s decision could not be said to lack logical connection with the evidence or to otherwise be illogical or unreasonable.
The authorities for applicable principles of legal unreasonableness and illogicality are outlined in the above reasons.
Here, the Authority accepted various of the Applicant’s claims to have suffered serious harm in the past and that he was a credible witness. However the Authority’s findings about the reason for such suffering contributed to its view that the Applicant’s profile would not give rise to real chance or real risk of serious harm on return some years later. Further, the Authority weighed the various sources of country information (which indicated that the situation in Sri Lanka had improved and on the other hand that torture and mistreatment of Tamils including by police continued). In the circumstances, it was open to the Authority to conclude that the past harm did not, of itself, constitute a real chance of persecution or real risk of serious harm in the future and that such real chance and real risk were remote.
In my view, the Authority’s findings were considered, detailed and logically reasoned.
It was not unreasonable for the Authority to conclude as it did and its findings were open to it on the materials that were before it.
Resolution of ground 3
The third ground is not made out.
CONCLUSION
For the above reasons, the amended application is dismissed with costs in accordance with the scale for final hearing in the amount of $8,371.30.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated:2 August 2024
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