FEL19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 259
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FEL19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 259
File number: SYG 3428 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 26 February 2025 Catchwords: MIGRATION – Immigration Assessment Authority – affirmed decision not to grant temporary protection (class XD) (subclass 785) visa – extension of time granted – consideration of country information – complaint that the Authority preferred some country information over other– whether the Authority is required to refer to each piece of information which is contrary to its findings – application for judicial review dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a),36(2)(aa), 477(2),473CB Cases cited: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
DJG20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 11
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Vella v Minister for Border Protection (2015) ALJR 89
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of hearing: 18 February 2025 Place: Parramatta Counsel for the Applicant: Ms Baw Solicitor for the Applicant: Mr Berthelot ( Legal Aid) Counsel for the First Respondent: Mr Mcdonald-Norman Solicitor for the First Respondent: Mr Moss (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs
Table of Corrections 26 February 2025 In paragraph 5, the reference to the “ Immigrations Assessment Authority has been corrected to “Immigration Assessment Authority”. ORDERS
SYG 3428 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FEL19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for an extension of time is granted.
2.The application is dismissed.
3.The order of Judge Barnes made on 6 February 2020 that the Minister be restrained from removing the applicant until further order is discharged.
4.The Applicant is to pay the First Respondent’s costs fixed in the sum of $15,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a 44-year-old male citizen from Sri Lanka of Tamil ethnicity. He first arrived in Australia as an unauthorised maritime arrival on 14 November 2012.
On 7 October 2016, the applicant applied for a Temporary Protection (class XD) (subclass 785) visa. On 27 February 2018, the applicant attended a protection visa interview.
On 6 March 2018, the applicant provided written submissions through his representatives in support of his claims for protection.
On 21 March 2018, a delegate of the Minister refused to grant the applicant the visa under s 65 of the Act.
On 26 March 2018, the matter was referred to the Immigration Assessment Authority (the Authority). No further submissions or new information was provided to the Authority during its review.
On 9 May 2018, the Authority affirmed the delegate’s decision not to grant the applicant the visa.
On 23 December 2019, the applicant applied to the then Federal Circuit Court of Australia to seek judicial review of the Authority’s decision.
EXTENSION OF TIME
The applicant seeks leave for an extension of time in respect of an application for judicial review of the decision by the Authority
The initiating application was filed 558 days outside of the prescribed time period. The applicant seeks an extension of time under s 477(2)(b) of the Migration Act 1958 (Cth) (“the Act”) on the following grounds (errors in original):
1. The extent of the delay is approximately 18 months. The applicant seeks to rely on the affidavits of the applicant affirmed on 7 November 2024 and the affidavit of William Berthelot affirmed on 13 November 2024 in support, which set out the relevant circumstances. The key circumstances are summarised below:
a. The applicant has suffered traumatic brain injuries, seizures, PTSD and alcohol abuse, amongst other health problems. Consequently, he has trouble with his memory.
b. The applicant was also homeless after losing his job.
c. Due to injuries from assaults and suffering from seizures, the applicant has been in and out of hospital on multiple occasions.
d. The applicant was under the misconception that he had a three year visa, and before the expiry of the time limitation to apply for review, it was unclear whether he was advised of the IAA decision.
e. The IAA did not have any legal representation during the IAA proceedings and cannot read or write English well; he needs an interpreter to speak English.
2. In the circumstances, the applicant has an adequate and reasonable explanation for the delay.
3. There is no particular prejudice to the First Respondent (the Minister) due to the delay.
4. The proposed Amended Application has grounds of review with sufficient merit to warrant an extension of time being granted.
For the reasons outlined below, the application for an extension of time should be granted.
THE LAW IN RELATION TO AN EXTENSION OF TIME
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)prejudice to the respondent due to the delay; and
(d)the merits of the proposed application.
To the above, the Court would add that the longer the delay in lodging an application, the more persuasive the reason for the delay must be.
THE APPLICANT’S EVIDENCE AND SUBMISSIONS ON THE EXTENSION OF TIME APPLICATION.
The applicant gave evidence as to the reasons for the extensive delay in the lodging of his application for judicial review. He was cross examined by Counsel for the Minister. The applicant stated he did not read or write in English. He stated he had experienced problems with his memory for some time.
The applicant was taken to CB 189, which was an email from the applicant using a Hotmail email address to the Authority dated 13 April 2018. That email address was the email address the Authority sent the decision under review to. In addition, the Authority sent a copy of the decision by post to an address at Auburn where the applicant has resided at. The applicant was unable to recall ever having used the Hotmail address for communications and denied he ever received by post a copy of the Authority’s decision. He was unable to recall if he lived at the Auburn address in May 2018, the time the Authority published its decision.
On behalf of the applicant, it was submitted that the extent of the delay is sought to be explained by the evidence set out in the Affidavits of William Jean Berthelot affirmed 13 November 2024 and of the applicant affirmed 7 November 2024. In summary, it is submitted that a combination of harsh factors contributed to the lengthy delay. Key factors relied upon are the applicant’s considerable health issues, which it is claimed cause memory loss and confusion, that he was unrepresented at the time of the Authority’s review, had no fixed address to be contacted as he was homeless, and that he was under the misapprehension that he held a three-year bridging visa.
The applicant submitted there is no identifiable prejudice that would be suffered by the Minister if the extension of time were granted.
As to the merits of the case, the exercise of power under s 477(2) of the Act requires the Court to consider, at a “reasonably impressionistic level” with reference only to the grounds “on their face”, whether the proposed application is “plainly hopeless”, “reasonably (or sufficiently) arguable”, or has “reasonable prospects of success”; (see: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [45], [76] (“DHX17”)).
The Court will misconceive its function of power and act in excess of its jurisdiction should it go beyond this “threshold assessment of merit” and undertake a “substantive analysis of the merits” of the proposed application, “as if they were being determined at a hearing”; (see: DHX17 at [44], [68], [76]).
On an impressionistic level, it is submitted it cannot be said that the proposed application is plainly hopeless. It is reasonably arguable that leave for an extension should be granted.
The relevant matters weigh in favour of finding that it is in the interest of justice to grant the extension of time.
FIRST RESPONDENT’S SUBMISSIONS: EXTENSION OF TIME
On behalf of the Minister, it was submitted the applicant acknowledged that delay was “lengthy”. Respectfully however, this was a massive understatement, and the delay may be fairly described as “very significant” or “extreme”. In Vella v Minister for Border Protection (2015) ALJR 89, Gageler J (as he was then) at [3] noted that the Court could only be satisfied that it was in the interests of justice to grant an extension of 17 months if it was persuaded that the plaintiff’s case was “exceptional”. The delay in this case is in fact longer.
It was conceded that the applicant suffers from significant and continuing physical and mental health issues. Further, he was homeless for at least part of the period before seeking review. The difficulty in this case, is that the Court is being asked, some seven years later, to determine whether or not the applicant’s significant and acknowledged health issues, explain his claims that he never received either an email copy or a hard copy of the Authority’s decision by email or post. Further, the medical evidence does not establish that the applicant’s health issues rendered him incapable of understanding the Authority’s decision or seeking advice or review, when he had previously been able to seek advice from the Refugee Advice and Casework Service (RACS).
At best, the applicant claims he cannot remember receiving the Authority’s decision. However, the Minister accepted that there will be no real prejudice but there would be significant serious consequences for the applicant if an extension of time was not granted.
SHOULD AN EXTENSION OF TIME BE GRANTED?
The Court notes the very significant period of time that elapsed prior to the application for judicial review being lodged. That period of time of itself factors heavily against an extension of time being granted.
The applicant claims he did not receive a copy of the Authority’s decision either at the email address he provided or by post. Having read the medical evidence, noting the concession by the Minister, the Court is satisfied that the applicant at the time the decision was handed down, was suffering from significant health issues including seizures, traumatic brain injury, epilepsy and a history of torture and trauma. The Court is satisfied of this based on the evidence given by the applicant and its assessment of him, together with the medical history which indicates he had been the subject of a significant assault in December 2017, which resulted in being hospitalised, and being treated for alcohol withdrawal. The Court is also satisfied that the applicant’s memory and cognitive functions, even in 2018, were significantly impacted. This may provide an explanation as to why he thought an immigration card that he been provided with was in fact a three-year bridging visa.
The Court accepts that correspondence was sent from a Hotmail address to the Authority by the applicant in 2018. The Court is satisfied that this correspondence was sent on the applicant’s behalf, and that it is probable that a third person created the email address and/or sent the correspondence referred to above on behalf of the applicant. The Court accepts that the applicant would have been in 2018 and is unable to now, to access email unless through a third party who has knowledge of the particular email address, any password of the account and is also able to speak Tamil, being the only language effectively spoken by the applicant.
The Court accepts that a copy of the Authority’s decision record was sent to an address at Auburn, where the applicant had lived. The Court is unable to determine if the applicant was still living at that address when the decision was posted to him. Even if he did receive it, his capacity to understand the decision was and is even more so now significantly compromised due to his cognitive deficits caused by repeated head trauma and epilepsy.
The circumstances in this case are exceptional such that the reasons for the delay should be accepted. This mitigates strongly in favour of leave being granted, notwithstanding the significant length of time that elapsed prior to the application for judicial review being lodged.
This then leaves for consideration and examination of the proposed grounds of review. For the reasons set out below, the Court considers that the sole ground of judicial review is not ‘’plainly hopeless’, rather it is arguable. This favours an extension of time being granted.
Weighing up all the relevant factors, and in the very unusual circumstances relating to the health of the applicant, the Court considers that leave for an extension of time should be granted.
The Court will now consider the issue of whether the ground of judicial review has merit on a substantive basis.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The Authority had regard to the material provided by the Secretary under s 473CB of the Act. No further information had been obtained or received.
The applicant’s claims for protection were summarised at [4] as follows:
·He is a Tamil Hindu, born in Jaffna District, Sri Lanka in 1980.
·The applicant worked as a shop assistant in an LTTE owned store in [redacted] from around 2004 to 2006. In 2007 his family moved from [redacted] to [redacted] due to the unrest, his older brother went to India. After relocating to [redacted] the applicant moved around and stayed at different friend’s houses every few months.
·In 2009, while at his family home, the applicant was detained by the Criminal Investigation Department (CID) and taken to Colombo. He was questioned about his involvement with the LTTE. They were suspicious of him for reasons including that he worked in an LTTE store. During this interrogation he was subject of torture and two of his fingers were broken. He was detained for around 3 days, he believes he was held at the CID 4th Floor. With the help of a lawyer his mother secured his release. He was told he would have to report whenever they asked him to.
·Around 3 months later the CID called the applicant and asked him to report to Colombo. He did not go as he was afraid he would be tortured. Around a week after this CID officers came to his home, blindfolded him, and took him to an unknown location in [redacted]. He was subject to further questioning, including about his knowledge of weapons and when he would return to [redacted]. He was held for one day and one night, during which time he was beaten. After he was released he moved to Colombo.
·In early 2012 his family moved to a new area of [redacted]. The applicant was caught by the CID at this house. They put him in a van and drove him about for around four hours. During this time he was beaten and questioned about his LTTE affiliation. He overheard his captors say, in Sinhalese, ‘we should kill him’, but he was eventually released.
·Around a month or so before departing Sri Lanka he received a call from the CID asking him to report to them. He was scared of further mistreatment, so he did not report but made arrangements to leave Sri Lanka.
·The CID visited his family home a number of times following his departure. The last time they visited was either around the time of the applicant’s father’s death in 2014 or in the beginning of 2016.
·He fears harm from the CID and army due to being a Tamil with actual and imputed LTTE links and because he departed Sri Lanka illegally and sought asylum.
The Authority accepted at [5] that the applicant is a Tamil Hindu born in the Jaffna District who resided in a particular town and city as claimed by the applicant. It found the applicant is a Sri Lankan national and that Sri Lanka is the relevant receiving country.
The Authority was prepared to accept the applicant had some difficulty accurately recalling past events in logical sequence. No supporting medical evidence pertaining to memory issues had been submitted. Nonetheless, the Authority accepted the applicant had experienced some past harm and that past traumatic experiences may have impacted the applicant’s ability to recall the past.
At [7] it accepted the applicant was never a member of the Liberation Tigers of Tamil Eelam (“LTTE”) and that he worked in an LTTE affiliated store from around 2004 to 2006 and resided in LTTE controlled areas.
The Authority did not draw adverse inferences at [8] from the applicant’s difficulty in providing specific dates for key events which led to his departure from Sri Lanka.
It stated concerns at [9] about the changing narratives of the past harm the applicant claims to have experienced from the Criminal Investigation Department (“CID”). The Authority was prepared to accept at [11] the applicant was detained and taken to Colombo by the CID in 2009 as claimed. On account of the applicant’s ethnicity, residential history, and past employment with an LTTE enterprise, the Authority considered the applicant would have been of interest to the authorities following the end of the Sri Lankan civil war in 2009. It considered it plausible and was prepared to accept that whilst detained by the CID, the applicant was physically mistreated, and his fingers were broken. The Authority was not satisfied at [12] the Sri Lankan authorities would have released the applicant in 2009, on the request of a lawyer and his mother, if the applicant was of any further interest.
The Authority considered at [13] the applicant’s varying dates, relating to the CID taking him from his home to an unknown location and detaining him overnight for a second time, were significant. In one instance, the applicant stated this occurred three months after the first incident. On another occasion, he stated it occurred more than one year after the first incident. It did not consider it plausible that the CID would wait, following the applicant’s release in 2009, until 2011 if they considered the applicant to be of interest. It was not satisfied at [14] the applicant was subject to reporting obligations following the 2009 incident or that he ever breached any such obligations. The Authority did not accept the applicant’s claims that he was asked to report once to the CID, failed to do so and was therefore detained.
At [15], the Authority did not accept the applicant was detained by the CID a second or third time. It did not accept that at the time of his departure in November 2012, the applicant continued to be of any adverse interest to the authorities or any group in Sri Lanka due to any actual or perceived links with the LTTE.
It did not accept at [16] the CID visited the applicant’s family home inquiring about him after he left the country in 2012, nor in 2014 or 2016.
The Authority accepted at [17] that the applicant left Sri Lanka by unofficial means contrary to Sri Lankan law including the Immigrants and Emigrants Act 1949 (“I&E Act”). It was satisfied that the Sri Lankan government may assume that, due to his mode of departure, the applicant sought asylum in Australia. It found that if the applicant was to return to Sri Lanka, he may be identified as a returning asylum seeker.
At [24] the Authority was not satisfied the applicant would continue to be of interest to the authorities on account of working as an employee in an LTTE store in approximately 2004 to 2006, and residing in LTTE controlled areas.
The Authority was not satisfied at [25] the applicant would be the subject of detention for any reasons of national security. It considered the applicant was detained once but then released after a matter of days. It was of the view the applicant only had low level involvement with the LTTE more than 10 years ago. There was only a remote chance of the applicant being detained under the Prevention of Terrorism Act 1978 (“PTA”) at that time or in the reasonably foreseeable future.
It was not satisfied at [26] that the short comings in the reconciliation process of the Sirisena government either attract a real chance of harm for the applicant or were indicative of circumstances giving rise to such a risk. This was in light of the finding that the applicant was not of any adverse interest for any reason relating to the conflict or Tamil separatism.
At [27] the Authority did not consider that a risk of harm due to actual or suspected LTTE links existed at the time of the applicant’s departure from Sri Lanka, nor that it would exist if he returned in the foreseeable future. It did not accept the applicant would be imputed with a pro-LTTE opinion should he return. It did not accept he could be considered to belong to a particular social group of Tamils with perceived links to the LTTE or that he would face a risk of any harm in Sri Lanka for that reason.
The Authority did not accept at [28] the applicant had any profile or circumstances that would result in torture or mistreatment if he were to return to Sri Lanka after having sought asylum.
At [29] it was not satisfied the applicant’s past dealings with the CID may expose him to a real risk of harm. Overall, it was not satisfied the applicant faced a real chance of harm as a returning Tamil asylum seeker.
It accepted at [30] the applicant may be briefly detained in poor conditions in prison, including old infrastructure, overcrowding, and shortage of sanitary and other basic facilities possibly over a weekend or public holiday due to an arrest for contravening the I&E Act.
The Authority did not consider at [33] that any questioning, brief detention, or fine that the applicant may be subject to would reach the necessary level of being a threat to his life or liberty, significant physical harassment or ill treatment, or would otherwise constitute serious harm under s 5J(5) of the Act.
It was not satisfied that any questioning, detention, or fine would involve systematic and discriminatory conduct of the Sri Lankan authorities per s 5J(4)(c) of the Act.
Overall, the Authority did not accept at [35] the applicant faced a real chance of persecution for reasons of his illegal departure from Sri Lanka, due to any questioning, detention or penalty because of his illegal departure, or for being a returning asylum seeker.
The Authority concluded at [36] the applicant did not meet the requirements of a refugee in s 5H(1) nor s 36(2)(a) of the Act.
It considered the complementary protection criterion and concluded at [43] the applicant did not meet s 36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an amended application, filed on 20 November 2024. Only ground one is pressed:
1.The Second Respondent (IAA) failed to evaluate and determine relevant submissions of substance which were clearly articulated, made by or on behalf of the applicant. Furthermore, the IAA failed to consider the claims and submissions cumulatively.
Particulars
a. These were all relevant submissions of substance. a. The applicant’s representatives provided to the IAA approximately 5 pages of written submissions referring to the multiple sources of country information providing wide reporting that the arbitrary detention and torture of Tamils with suspected LTTE links or sympathisers of the LTTE is still occurring, and even to those persons that were too young to have any involvement with the LTTE during the war. The applicant’s written submissions also included that:
i.Having regard to the arbitrary nature of detentions occurring and of human right abuses during detention and torture, the applicant had a real risk of serious harm if returned to Sri Lanka.
ii.It would be unreasonable to place undue weight on the DFAT report given the acknowledged shortcomings of the report in monitoring returnees, and considering the vast contrary country information.
iii.Even if DFAT’s assessment of a “low” risk of persecutory harm is correct, it met the test for a ‘real chance’ set out in Chan v MIEA (1989) HCA 62 [407].
iv.Even if the applicant were released after being detained at the airport, he would still be at risk of being monitored and detained shortly after release.
b. Part of the Tribunal’s reasons merely refer to the “ongoing torture of Tamils in Sri Lanka” in a single paragraph: CB198.
c. The IAA’s obligation was to read, identify, understand and evaluate the submissions of substance and determine whether they should be accepted or rejected. The IAA failed to do that and thereby fell into jurisdictional error.
d. Furthermore, the Tribunal also failed to consider the claims and submissions cumulatively, i.e. whether during the arrival process at the airport, the applicant would be exposed to a real risk of serious harm having regard to the country information and submissions about arbitrary detention and torture.
THE APPLICANT’S SUBMISSIONS: MERIT OF THE PROPOSED GROUNDS
It was submitted that the applicant made a substantial and clearly articulated submission that there was a prospect he would be subject to arbitrary detention and torture if he returned to Sri Lanka. The Authority failed to engage with that submission and misapprehended or misunderstood key aspects of them contrary to Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27], [105] (“Plaintiff M1”) and SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [75]-[82] (“SZSSC”).
The Authority also did not accurately summarise the representative’s submissions of the Department of Foreign Affairs and Trade (“DFAT”) report and the United Kingdom Home Office Report. The substance of the submission, contrary to the finding at [20], was that the reports should not be relied upon exclusively. There were more independent sources that provided more accurate evidence to be preferred considering the unfulfilled promises of the government. It was submitted the Authority failed to identify and address this submission.
The Authority continued at [21] to summarise aspects of the submissions with deficiencies. It also failed to deal with the remainder of the representative’s submissions.
The submissions were all of substance and squarely directed at the applicant’s claims and supported by his initial submission that other independent and credible sources of country information should be relied upon. It is not suggested the Authority was obliged to accept the submissions. Rather, it had an obligation to evaluate them and determine whether they should be accepted or rejected; (see: SZSSC at [87]).
Further, the reasons provided by the Authority did not disclose any process of weighing evidence from the country information and the preferencing of some information. The context required the Authority to articulate the effects of the evidence considered, and to provide an indication as to why preference was given to the DFAT report; (see: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [44], [49], [50] (“MZYTS”)).
Any evaluation of the situation in Sri Lanka as set out in the submissions of substance is absent from the Authority’s reasons. The absence of such evaluation in the context of the Authority’s statutory task demonstrates jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS: MERIT OF THE PROPOSED GROUNDS
Failure by the Authority to consider substantial claims or evidence raised by an applicant may give rise to jurisdictional error; (see for example: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112]; MZYTS at [34]-[36] and [38]). This obligation is not a warrant for merits review and does not permit the Court to substitute its own decision for that of the Authority; (see: Plaintiff M1 at [26]).
The Authority is required to ‘engage with’ or ‘consider’ claims, submission or evidence but this engagement will depend on their nature, form and content, including their length, clarity and degree of relevance; (see: Plaintiff M1 at [25]).
However, the Authority’s obligation to give reasons for its decision does not require a ‘line by line refutation’ of material contrary to its findings, or require the Authority to give a sub-set of reasons on why it accepted some evidence and rejected others; (see: Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [65] and [67]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48]).
The Authority is not required to refer to every piece of evidence and every contention raised by an applicant; (see: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593 (“WAEE”) at [46]; ETA067 v Republic of Nauru (2018) 92 ALJR 1003(“ETA067”) at [13]).
Whether the Authority has referred to particular material in its reasons ‘may inform, but does not in and of itself determine, whether the material was considered; (see: DJG20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 11 at [18]). Instead, an omission may merely indicate that the Authority did not consider evidence or issues to be material to an applicant’s claims; (see: ETA067 at [14]).
Whether the Authority can be inferred to have failed to consider evidence or claims it cannot hence be solely judged by whether it expressly referred to them. It will depend upon their nature and relevance; the scope and extent of the Authority’s reasons as a whole; and whether it is unnecessary to make findings on a particular matter in light of the Authority’s reasoning more generally; (see: WAEE at [47]; MZYTS at [52]).
The applicant’s argument calls for a ‘line by line’ refutation, which the Authority was not required to give. The Authority’s decision demonstrates that it considered, understood and addressed the applicant’s submissions and evidence.
The Authority’s account at [20]-[26] demonstrates a clear consideration and understanding of the claims and evidence before it, including the applicant’s submissions.
The claim that the Authority failed to deal with the remainder of the submissions cannot be accepted.
The Authority clearly considered country information regarding risks of torture or mistreatment for returnees in its assessment of what risks the applicant may face during any brief period of detention upon return to Sri Lanka at [40].
IS THERE MERIT IN THE PROPOSED GROUNDS?
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
It is well settled that the country information and the weight it gives to that information is a matter for the Authority: (see: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10).
It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
The applicant submits that through his representative, he made a substantial and clearly articulated submission that there was a prospect of him being subject to arbitrary detention and torture if returned to Sri Lanka. This submission is based on the material provided in a post-interview submission to the Ministers delegate by RACS in a fifteen-page letter, dated 6 March 2018 [CB 151 – 165]. That letter made reference to numerous sources of country information, including DFAT and UK Home Office country information reports.
That letter submitted that significant weight should be given to more independent sources rather than government sources, such as the DFAT and UK Home Office reports.
The gravamen of the applicant’s complaint is that the RACS submission was not properly “evaluated” and no explanation was given by the Authority at [22] as to why it gave greater weight to some information and not others.
First, it is to be noted that the Authority’s decision record includes extensive footnotes that refers to various sources of country information. While this includes the DFAT and UK Home office reports, reference is also made to information contained within the RACS Submission. This includes the Office of the UNHCR “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka’ 22 December 2016 (the Emmerson report). This is referred to at [18] – [20] of the RACS report and is footnoted at 16 in the decision record. There is also reference to a DFAT response to the Emmerson report footnoted at 17 of the decision record.
At [21] of the RACS submission, reference is made to a report from the Freedom from Torture organisation titled ”Tainted peace: Torture in Sri Lanka since May 2009’. This is referenced at footnote 11 of the Authority’s decision record. There are a significant number of other references in the decision record to country information other than the UK Home Office report and the DFAT report.
In these circumstances, where there has been a wide consideration of country information from a variety of sources, including those matters referred to in the RACS submission, it is difficult to see how the Tribunal can be described as not understanding or evaluating the applicant’s claims.
Complaint is made that at [22] where the Authority states “the weight of the information before me is the situation has improved for Tamils in Sri Lanka’ lacks a description of the information considered and reasons as to why some information was preferred as to others.
Complaint is made at [25] of the applicant’s submissions that the Authority did not accurately or comprehensively summarise all the representative’s submissions. It was not required to do so. As set out above, the Authority is not required to refer to each individual piece of information and engage in a point-by-point refutation of material contrary to its findings.
Contrary to the applicant’s submissions, the Authority engaged in a detailed consideration of the relevant country information, including that supplied by RACS, but based on its evaluation of the totality of the information, came to a conclusion that was open to it, that the applicant was not at risk upon return. This finding is supported by the statement that there was ‘some divergence in reports outlining the risk of harm in Sri Lanka for individuals with perceived associations with the LTTE’. This clearly indicates that the Authority had considered and ‘engaged’ with all the country information, including the Emmerson report.
This consideration included in its ultimate findings that the applicant was not of any interest to Sri Lankan authorities when he left Sri Lanka, and accordingly, would not be of any adverse interest to them upon return.
This consideration included that the applicant was never a member of the LTTE or any suggestion that his family members were. The Authority found at [24] that the applicant’s only association with the LTTE was working as an employee at an LTTE store for two years in 2004 2006, and residing in LTTE controlled area. There was no suggestion that the applicant had engage in any conduct since his interaction with the CID in 2009 that would have increased any perception of his association with the LTTE.
At [25] the Authority set out specific reasons why it rejected the applicant would be the subject of detention for reasons of national security upon return. This conclusion was open to the Authority based on the evidence that was before it and for the reasons it gave.
Counsel for the applicant submitted that, the applicant remained at real risk of harm, due to the potential of him being detained arbitrarily, and once detained, will be the subject of abuse and/or torture. It was suggested that this risk was not properly evaluated.
The Emmerson report suggested that a person with a perceived association with the LTTE was at risk. This was considered by the Authority who found that the applicant had no LTTE connection. It was on this basis he was released from custody. The Court accepts the Authority did not specifically use the word ‘arbitrary’ in its decision, however the finding that the applicant was of no interest to Sri Lankan authorities in the Court’s view was a finding of greater generality that encompassed the risk of arbitrary detention. The risk of detention related to those, as the Authority found, that had links to the LTTE. This was not the case for the applicant.
A fair reading of the totality of the Authority’s decision, but in particular [20] – [27] indicates the Authority evaluated this risk. It concluded at [27] that the applicant was not of any interest to Sri Lankin authorities at the time of his departure and would not be of any interest were he to return. Most importantly the Authority did not accept that “he could be considered to belong to a particular social group of Tamils with perceived links to the LTTE or that he would face a risk of any harm from the Sri Lankan (authorities) for that reason”. In the Court’s view, this finding of necessity, encompasses any risk of arbitrary detention and torture while in a brief period of airport detention upon return. The Authority specifically found that being Tamil, having lived in the northern area or in a Tamil controlled area did not support a risk of being considered by the authorities of LTTE membership or pro-Tamil opinion.
The Court does not consider the applicant has demonstrated that the Authority failed to consider his claims, submissions and evidence about country conditions in Sri Lanka should he be returned. For the reasons it gave, based on the evidence before it, the Court considers the Authority’s finding the applicant was not at risk of serious harm was open to it.
Further, the Court is not satisfied that the Authority failed to consider the applicant’s claims cumulatively. As noted in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34] the Full Court stated:
as a matter of inexorable logic…[if] all individual claims or basis for establishing entitlement to a visa are dismissed (here, dismissed as not giving rise [to] a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.
The Authority concluded, based on country information that was before it, that the applicant would not be at risk during any period of brief detention, including in prison over a weekend, prior to being placed before a court in relation to his illegal exit from Sri Lanka. The Court does not accept that this would place the applicant, contrary to the Authority’s findings, at a real risk of suffering torture cruel inhuman or degrading treatment or any other form of significant harm.
The Court is not satisfied that the sole ground of judicial review has merit.
DETERMINATION
In this circumstance, while the application for an extension of time has been granted the application should be dismissed. Further, for the avoidance of doubt, the order of Judge Barnes made on 6 February 2020 that the Minister be restrained from removing the applicant until further order is discharged.
The Court will hear from the parties in relation to costs.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 26 February 2025
0
23
1