Feu17 v Minister for Immigration; Few17 v Minister for Immigration; Fex17 v Minister for Immigration
[2019] FCCA 1745
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FEU17 v MINISTER FOR IMMIGRATION & ANOR FEW17 v MINISTER FOR IMMIGRATION & ANOR FEX17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1745 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decisions – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – applicants disbelieved in significant respects and other fears found not to be well-founded – numerous errors alleged including in relation to nationality – related proceedings before a different judge decided before this case – leave to appeal refused by the Federal Court – no jurisdictional error established except in relation to the applicant son – applications by the other applicants dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 473CB, 473DD |
| Cases cited: FER17 v Minister for Immigration [2019] FCAFC 106 |
| Applicant: | FEU17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3693 of 2017 |
| Applicant: | FEW17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3695 of 2017 |
| Applicant: | FEX17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3696 of 2017 |
| Judgment of: | Judge Driver |
| Hearing dates: | 24 June, 29 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| Solicitors for the Applicants: | Mr E Rajadurai of Divine Lawyers |
| Counsel for the Respondents: | Mr C Lenehan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS – SYG3693/2017
The application by FEU17 as amended on 17 September 2018 and by leave on 24 June 2019 is dismissed.
ORDERS – SYG3695/2017
The application by FEW17 as amended on 17 September 2018 and by leave on 24 June 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3693 of 2017
| FEU17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
SYG 3695 of 2017
| FEW17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
SYG 3696 of 2017
| FEX17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of three separate decisions by the Immigration Assessment Authority (Authority) made on 8 November 2017. In each case the Authority affirmed a decision of a delegate of the Minister (delegate) not to grant each applicant a protection visa. There are three applicants. Applicant FEW17 is the husband of applicant FEU17 and the father of applicant FEX17. For convenience, in these reasons, I will refer to applicant FEW17 as the applicant father, applicant FEU17 as the applicant mother and applicant FEX17 as the applicant son.
On 8 October 2019 the application by the applicant son was conceded by the Minister and that case was remitted to the Authority by consent. The Minister accepted that the Authority misconstrued s.2A of the Sri Lankan Grant of Citizenship to Persons of Indian Origin Act No 35 of 2003 (2003 Act) in determining his nationality. That is because that section does not confer Sri Lankan citizenship on all descendants of Sri Lankan permanent residents, only on those who are descendants of permanent residents of Sri Lanka with Indian origin since 30 October 1964, which the applicant son was not. Thus, the Authority in that case applied the wrong law with respect to the applicant son’s nationality in determining that Sri Lanka was his “receiving country” for the purposes of s.5(1) of the Migration Act 1958 (Cth) (Migration Act).[1]
[1] See FER17 v Minister for Immigration [2019] FCAFC 106 at [85]
A protection visa application by another son (applicant FHC17) was dealt with separately and was subject to judicial review before this Court.[2] There was an unsuccessful application for an extension of time to appeal against that decision.[3]
[2] FHC17 v Minister for Immigration & Anor [2018] FCCA 3382
[3] FHC17 v Minister for Immigration [2019] FCA 827
The following statement of background facts is derived from the submissions of the parties.
The applicant father arrived at Christmas Island as an unauthorised maritime arrival with his wife (the applicant mother) and four children (including the applicant son) on 25 June 2013.[4] The applicant father, the applicant mother, the applicant son and FHC17 attended an entry interview on 6 August 2014.[5] On 13 April 2016, the applicant mother applied for a SHEV.[6] The applicant father and his sons were dependent applicants on the applicant mother’s application but also made separate protection claims.[7]
[4] Court Book in proceeding SYG3693/2017 (SYG3693/2017 CB) 97, 130, 266
[5] SYG3693/2017 CB 1, 22, 48
[6] Safe Haven Enterprise Visa; SYG3693/2017 CB 77
[7] SYG3693/2017 CB 147, 176, 205
On 4 April 2017, the delegate refused to grant the applicant father, the applicant mother and the applicant son a SHEV and referred the decision to the Authority for review under Part 7AA of the Migration Act.[8]
[8] SYG3693/2017 CB 266-282, 318
The applicant father’s claims
The applicant’s claims for protection were set out in a statement dated 10 April 2016 accompanying the SHEV application.[9] In summary, those claims were as follows:
a)he was a Tamil Hindu of Sakkiliar caste, born in Kandy District, Sri Lanka;
b)his brother was captured by the SLA[10] and remained missing. He believed that his brother was suspected of being a LTTE[11] member, and that he was now dead;
c)the applicant was harassed by the Sri Lankan authorities a number of times. He was detained at a military camp, beaten and questioned about LTTE involvement and their whereabouts. He suffered a broken arm, injuries and scars. On one occasion, he was at the camp for about a week;
d)in 1987, his house was destroyed by a bomb and his wife’s body was burnt badly. He and his family went into hiding and then fled to India;
e)the authorities had killed his brother because they thought that he was an LTTE member. The applicant was also targeted, fled Sri Lanka and had been away for a long time. He believed that the authorities would suspect him of being an LTTE member;
f)when he was in Sri Lanka, people from his caste were not allowed to attend temples. They would have to do menial jobs and had no opportunities for advancement. He feared the same discrimination upon return;
g)his sons were at risk because they were at an age where they might be considered potential militants or recruits for anti-government groups. His wife and daughter would not be safe; and
h)the names of the applicant and his family were published online after a data breach by the Australian Government, and people would know that they had sought asylum in Australia. He feared that the Sri Lankan Government knew that he had sought asylum and would be more suspicious that he was involved with the LTTE.
[9] Court Book in proceeding SYG3695/2017 (SYG3695/2017 CB) 147-150
[10] Sri Lankan Army
[11] Liberation Tigers of Tamil Eelam
Authority's decision
The Authority had regard to the material referred by the Secretary under s.473CB of the Migration Act.[12] The applicant provided submissions and information to the Authority through his representative. Insofar as the applicant’s submission of 30 April 2017 comprised information before the delegate and argument, the Authority was satisfied that it was not new information and had regard to it.[13] The Authority did not consider it necessary to get new information about the applicant’s scars, noting that his written claims referred to his injuries and scarring, including on his face.[14]
[12] SYG3695/2017 CB 621 [3]
[13] SYG3695/2017 CB 621 [5]-[6]
[14] SYG3695/2017 CB 621 [7]
The Authority identified new country information, being the Committee Against Torture report dated 30 November 2016, excerpts from the ICG[15] report of May 2016,[16] an ACCORD report[17] and 278 pages of country information excerpts.[18] Noting that the new information predated the delegate’s decision and was publicly available, and that the applicant was represented before the delegate and had confirmed that there was no further information, the Authority found that the reports did not meet s.473DD(b)(i) of the Migration Act.[19] Nor was it satisfied that the reports were credible personal information under s.473DD(b)(ii).[20] The Authority was also not satisfied that there were exceptional circumstances to justify considering the new information under s.473DD(a).[21]
[15] International Crisis Group
[16] SYG3695/2017 CB 380-420
[17] Australian Centre for Country of Origin & Asylum Research and Documentation; SYG3695/2017 CB 421-618
[18] SYG3695/2017 CB 621 [8]
[19] SYG3695/2017 CB 621 [9]
[20] SYG3695/2017 CB 621 [10]
[21] SYG3695/2017 CB 622 [11]
The Authority did not accept the applicant’s submission about the 2017 DFAT[22] report, finding that the report had been before the delegate.[23] The Authority noted that it was not required to provide any material before the delegate to the applicant and that in any event, the report was publically accessible via the DFAT website.[24]
[22] Department of Foreign Affairs and Trade
[23] SYG3695/2017 CB 622 [12]
[24] SYG3695/2017 CB 622 [12]
The Authority accepted that the applicant was a married Tamil Hindu of Sakkiliar caste born in Sri Lanka, who fled to India in 1987 after his home was bombed and his wife suffered burns.[25] It accepted that his brother had gone missing in 1987 and was presumed dead, but did not accept that he was taken or killed by the military because of suspected LTTE connections.[26] The Authority accepted that the applicant was harassed, questioned, detained, physically harmed and had scars.[27] However, it considered that those events were remote in time and not uncommon in the context of the civil war.[28] It did not accept that the applicant, his brother or his family were involved in the LTTE.[29]
[25] SYG3695/2017 CB 623 [14]
[26] SYG3695/2017 CB 623 [15], CB 625 [26]
[27] SYG3695/2017 CB 624 [16], CB 625 [26]
[28] SYG3695/2017 CB 625-626 [26]
[29] SYG3695/2017 CB 626 [26]
It did not accept that the applicant’s daughter, son or daughter-in-law were assaulted as the applicant had made no mention of the attacks in his arrival interview.[30] The Authority considered that if the attacks had occurred before the family left India, it would have been at the forefront of the applicant’s mind at the entry interview and at the protection visa interview.[31] Given his failure to mention the claims at the outset, and the lack of detail provided, the Authority found that the applicant had added the claims to enhance his protection claims, but nonetheless accepted that he feared for his children’s safety, especially his daughter in terms of sexual harassment or assault, in Sri Lanka.[32]
[30] SYG3695/2017 CB 624 [17]
[31] SYG3695/2017 CB 624 [18]-[19]
[32] SYG3695/2017 CB 625 [21]
The Authority did not accept that the applicant or his adult family would be accused of being LTTE members or be harmed as a result, noting that:[33]
a)he and his wife left Sri Lanka in the context of the war in 1987 when they were very young and their home had been bombed;
b)the war ended in 2009 and the LTTE was a spent force;
c)the applicant’s children were born in Tamil Nadu and had never been to Sri Lanka and the applicant had not been involved in political activism;
d)many thousands fled to Tamil Nadu in similar circumstances; and
e)the Sri Lankan authorities had sophisticated intelligence in respect of persons with anti-government profiles (which the applicant did not have).
[33] SYG3695/2017 CB 626 [27]
The Authority found that the security and humanitarian situation had greatly improved since the end of the war.[34] While it accepted that the applicant had scarring, the Authority was not satisfied that scarring raised the applicant’s profile or that he would be a suspected LTTE member.[35] Having considered the applicant’s circumstances and country information, the Authority did not accept that he would face a real chance of monitoring, arrest, detention, prosecution or harm on the basis of real or suspected LTTE links, or because he had fled Sri Lanka, his home was bombed and his wife burned, he was questioned and beaten by the military, his brother went missing during the war, he had scars, his or his family’s extended absence from Sri Lanka, living overseas, or due to his children being young adults who had not lived in Sri Lanka.[36]
[34] SYG3695/2017 CB 626 [29]
[35] SYG3695/2017 CB 626 [31]-[32]
[36] SYG3695/2017 CB 627 [34]
The Authority accepted that the applicant was from a lower caste.[37] Having considered the referred country information and the information provided by the applicant, the Authority did not accept that the applicant’s opportunities for work were limited or that he had suffered discrimination in terms of employment or accommodation.[38] The Authority considered that the applicant would return to Sri Lanka as a citizen, and that there are no official laws or policies that discriminate on the basis of ethnicity or caste.[39] While it accepted that there might be some societal discrimination or disrespect based on caste, it did not accept that it would amount to serious harm, even when considered cumulatively.[40] Nor did it consider that the applicant would be denied religious freedom.[41] The Authority was satisfied that the applicant would be able to find accommodation, employment, health care, state protection, and practise his religion.[42]
[37] SYG3695/2017 CB 627 [35]
[38] SYG3695/2017 CB 627 [37]
[39] SYG3695/2017 CB 627 [38]
[40] SYG3695/2017 CB 628 [42]
[41] SYG3695/2017 CB 628 [42]
[42] SYG3695/2017 CB 629 [47]
The Authority did not accept that as a returnee from Tamil Nadu who had been overseas for an extensive period, the authorities would suspect that the applicant and his family were LTTE members who fled during the war.[43] Nor did it accept that the applicant would be undocumented on return to Sri Lanka, or that the refugee card issued to him by the Indian authorities would raise his profile or put him at any risk.[44] It did not accept that he faced a real chance of persecution by reason of his Tamil ethnicity, imputed political opinion, lower caste, or membership of a particular social group of Tamils who fled to Tamil Nadu during the war, or being harassed, questioned and harmed by the military in 1987, or due to the other factual matters accepted by the Authority.[45]
[43] SYG3695/2017 CB 629 [51]
[44] SYG3695/2017 CB 629 [53]
[45] SYG3695/2017 CB 629 [54]
The Authority did not accept that the data breach had raised the applicant’s profile.[46] While it accepted that he would return to Sri Lanka as a failed asylum seeker, it did not accept that he would face a real chance of harm for that reason.[47] The Authority accepted that the applicant might be questioned on return at the airport under the Immigrants and Emigrants Act 1949 (Immigrants and Emigrants Act), but did not accept that Tamils or people of the lower caste were treated differently.[48] It found that the Immigrants and Emigrants Act was a law of general application.[49] The Authority accepted that there might be a fine due to the Immigrants and Emigrants Act, but that it could be paid in instalments, and that if the applicant pleaded not guilty, he would be granted bail on his own surety or could rely on his daughter’s in-laws to assist as they had provided assistance in the past.[50] It did not consider that the applicant would face a real chance of harm during this process, or that the prison conditions in which he might be held would amount to serious harm.[51]
[46] SYG3695/2017 CB 630 [56]
[47] at [59]
[48] SYG3695/2017 CB 630 [61]
[49] SYG3695/2017 CB 630 [62]
[50] SYG3695/2017 CB 631 [63]-[64]
[51] SYG3695/2017 CB 631 [68]
Relying on its anterior findings, the Authority was not satisfied that there was a real risk of significant harm for any of the reasons claimed.[52] Nor was it satisfied that any low level societal discrimination on the basis of his caste would amount to significant harm.[53] Moreover, the Authority was not satisfied that poor prison conditions during any detention would be due to an intention to inflict pain or suffering or cause extreme humiliation, taking into account the applicant’s circumstances cumulatively.[54]
[52] SYG3695/2017 CB 632 [75]-[76]
[53] CB 632 [77]
[54] CB 633 [83], [85]
The applicant mother’s claims
The applicant’s claims for protection were set out in a statement dated 10 April 2016 accompanying the SHEV application.[55] In summary, those claims were as follows:
a)the applicant was a Tamil Hindu born in Kurunegala District, Sri Lanka. She was subjected to attempted abductions by the Sri Lankan authorities and on one occasion, an attempted rape;
b)her husband was tortured by the Sri Lankan authorities on many occasions. On one occasion, he was beaten and questioned about involvement with the LTTE. When he escaped, he returned to find their house bombed and the applicant badly burnt. They hid in the jungle and then fled to India in the 1980s;
c)six or seven months before they left, her husband’s brother went missing. They feared that he was dead or imprisoned because, as a Tamil man from their area of Sri Lanka, he might have been suspected of being an LTTE member;
d)her husband was of Sakkiliar caste and she became part of his caste when they married. They experienced discrimination in India on the basis of their caste and she feared that they would face discrimination for the same reason in Sri Lanka;
e)she believed that as Tamils who had lived overseas for a long time, the authorities would suspect that they were LTTE members. They would think that her family was involved in the LTTE because of her husband’s brother. She also feared that they would be targeted as failed asylum seekers returning from Australia;
f)before they left India, some men attacked her daughter. The applicant was worried about her children, and feared that her daughter would be sexually assaulted if returned to Sri Lanka; and
g)the names of the applicant and her family were published online after a data breach by the Australian Government, and might have been seen by people in Sri Lanka who would know that they had sought asylum in Australia. She feared that the Sri Lankan Government knew that she had sought asylum and would be more suspicious that they were involved with the LTTE.
[55] SYG3693/2017 CB 114-118
Authority’s decision
The Authority had regard to the material referred by the Secretary under s.473CB of the Migration Act.[56] The applicant provided submissions and information to the Authority through her representative. Insofar as the applicant’s submission of 30 April 2017 comprised information before the delegate and argument, the Authority was satisfied that it was not new information and had regard to it.[57]
[56] SYG3693/2017 CB 627 [3]
[57] SYG3693/2017 CB 627 [5]-[6]
The Authority identified new country information, being the Committee Against Torture report dated 30 November 2016, excerpts from the ICG report of May 2016, an ACCORD report, and 278 pages of country information excerpts.[58] Noting that the new information predated the delegate’s decision and was publicly available, and that the applicant was represented before the delegate and had confirmed that there was no further information, the Authority found that the reports did not meet s.473DD(b)(i) of the Migration Act.[59] Nor was it satisfied that the reports were credible personal information under s.473DD(b)(ii).[60] The Authority was also not satisfied that there were exceptional circumstances to justify considering the new information under s.473DD(a).[61]
[58] SYG3693/2017 CB 627 [7]
[59] SYG3693/2017 CB 627 [8]
[60] SYG3693/2017 CB 627 [9]
[61] SYG3693/2017 CB 627 [10]
The Authority noted that it had received a summary of psychological treatment report (STARTTS[62] report dated 5 May 2017.[63] The Authority was satisfied that the report met s.473DD(b)(i) and (ii), and that there were exceptional circumstances to justify considering it under s.473DD(a).[64]
[62] NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors
[63] SYG3693/2017 CB 628 [11]
[64] SYG3693/2017 CB 628 [12]-[13]
The Authority did not accept the applicant’s submission about the 2017 DFAT report, finding that the report had been before the delegate.[65] The Authority noted that it was not required to provide any material before the delegate to the applicant and that in any event, the report was publicly accessible via the DFAT website.[66]
[65] SYG3693/2017 CB 628 [14]
[66] SYG3693/2017 CB 628 [14]
The Authority accepted that the applicant was a married Tamil Hindu of Sakkiliar caste born in Sri Lanka, who fled to India in the 1980s after her home was bombed causing her to suffer burns.[67] It accepted that her husband was harassed, questioned and beaten by the military in the 1980s and his brother was missing.[68] It also accepted the applicant’s own claims of harassment and attempted abduction.[69] However, it considered that those events were remote in time and not uncommon in the context of the civil war.[70] It did not accept that the applicant, her family or husband or husband’s family were involved in the LTTE.[71]
[67] SYG3693/2017 CB 629 [16], CB 632 [29]
[68] SYG3693/2017 CB 630 [16]-[17], CB 632 [29]
[69] SYG3693/2017 CB 630 [17]
[70] SYG3693/2017 CB 632 [29]
[71] SYG3693/2017 CB 632 [29]
Given the applicant’s failure to mention the recent sexual assaults of her daughter and daughter-in-law at the outset, inconsistencies and lack of detail provided subsequently in her written claims and SHEV interview, the Authority found that the applicant had added those claims to enhance her protection claims.[72] Nonetheless, it accepted the applicant’s fear for her children’s safety, especially her daughter in terms of sexual harassment or assault in Sri Lanka.[73] The Authority also noted that it had considered the STARTTS report and accepted that she had attended counselling and suffered mental health issues, which it took into account in considering the applicant’s claims.[74]
[72] SYG3693/2017 CB 630-631 [23]
[73] SYG3693/2017 CB 630-631 [23]
[74] SYG3693/2017 CB 631 [25]
The Authority did not accept that the applicant or her adult family would be accused of being LTTE members or be harmed as a result, noting that:[75]
a)she and her husband left Sri Lanka in the context of the war when they were very young and their home had been bombed;
b)the war ended in 2009 and the LTTE was a spent force;
c)the applicant’s children were born in Tamil Nadu and had never been to Sri Lanka and the applicant had not been involved in political activism;
d)many thousands fled to Tamil Nadu in similar circumstances, and
e)the Sri Lankan authorities had sophisticated intelligence in respect of persons with anti-government profiles (which the applicant did not have.
[75] SYG3693/2017 CB 632 [30]
Nor did the Authority accept that the applicant or her family were suspected to be LTTE or criminals.[76]
[76] SYG3693/2017 CB 632 [31]
The Authority found that the security and humanitarian situation had greatly improved since the end of the war.[77] It did not accept that the applicant fit any of the risk profiles identified by DFAT.[78] Having considered the applicant’s circumstances and country information, the Authority did not accept that she would face a real chance of monitoring, arrest, detention, prosecution or harm on the basis of real or suspected LTTE links, or because she had fled Sri Lanka, her home was bombed, her husband questioned and beaten by the military, or her brother-in-law went missing during the war, her family’s extended absence from Sri Lanka, or due to her children being young adults who had not lived in Sri Lanka.[79]
[77] SYG3693/2017 CB 632 [32]
[78] SYG3693/2017 CB 632 [34]
[79] SYG3693/2017 CB 632 [36]
The Authority accepted that the applicant was from a lower caste.[80] Having considered the referred country information and the information provided by the applicant, the Authority did not accept that the applicant’s opportunities for work were limited to menial tasks or that she had suffered discrimination in terms of employment or accommodation.[81] The Authority considered that the applicant would return to Sri Lanka as a citizen, and that there are no official laws or policies that discriminate on the basis of ethnicity or caste.[82] While it accepted that there might be some societal discrimination or disrespect based on caste, it did not accept that it would amount to serious harm, even when considered cumulatively.[83] Nor did it consider that the applicant would be denied religious freedom.[84] The Authority was satisfied that the applicant would find accommodation, employment, health care, state protection, and practise her religion.[85]
[80] SYG3693/2017 CB 633 [37]
[81] SYG3693/2017 CB 633 [38]
[82] SYG3693/2017 CB 633 [39]
[83] SYG3693/2017 CB 634 [43]
[84] SYG3693/2017 CB 634 [43]
[85] SYG3693/2017 CB 634 [48]
Noting that the sexual harassment occurred many years ago when the applicant was a young girl in the context of the war, the Authority did not accept that she faced a real chance of sexual harassment, rape or other harm from the Sinhalese, the military, the authorities or others upon her return.[86] The Authority found that the situation had changed and the level of monitoring and harassment had declined.[87] It found that the applicant was a mature, married female with the support and protection of her husband. Even taking into account her mental state, it did not accept that she faced a real chance of harm on the basis of her gender, caste or past sexual harassment/attempted rape.[88]
[86] SYG3693/2017 CB 635 [51]
[87] SYG3693/2017 CB 635 [51]
[88] SYG3693/2017 CB 635 [51]
The Authority did not accept that as a returnee from Tamil Nadu who had been overseas for a long time, the authorities would suspect that the applicant or her family were LTTE members who fled during the war.[89] Nor did it accept that the applicant would be undocumented on return to Sri Lanka, or that the refugee card issued to her by the Indian authorities would raise her profile or put her at any risk.[90] It did not accept that she faced a real chance of persecution by reason of her Tamil ethnicity, imputed political opinion, lower caste, or membership of a particular social group of Tamils who fled to Tamil Nadu during the war, who suffered sexual harassment/attempted rape, or due to the other factual matters accepted by the Authority.[91]
[89] SYG3693/2017 CB 635 [53]
[90] SYG3693/2017 CB 636 [55]
[91] SYG3693/2017 CB 636 [56]
The Authority did not accept that the data breach had raised the applicant’s profile.[92] While it accepted that she would return to Sri Lanka as a failed asylum seeker, it did not accept that she would face a real chance of harm for that reason.[93] The Authority accepted that the applicant might be questioned on return at the airport under the Immigrants and Emigrants Act, but did not accept that Tamils or people of the lower caste were treated differently.[94] The Authority found that the Immigrants and Emigrants Act was a law of general application.[95] The Authority accepted that there might be a fine due to the Immigrants and Emigrants Act, but that it could be paid in instalments, and that if the applicant pleaded not guilty, she would be granted bail on her own surety or could rely on her daughter’s in-laws to assist as they had provided assistance in the past.[96] It did not consider that the applicant would face a real chance of harm during this process, or that the prison conditions in which she might be held would amount to serious harm.[97]
[92] SYG3693/2017 CB 636 [58]
[93] SYG3693/2017 CB 636 [61]
[94] SYG3693/2017 CB 637 [63]
[95] SYG3693/2017 CB 637 [64]
[96] SYG3693/2017 CB 637 [65]-[66]
[97] SYG3693/2017 CB 637 [70]
Relying on its anterior findings, the Authority was not satisfied that there was a real risk of significant harm for any of the reasons claimed.[98] Nor was it satisfied that any low level societal discrimination on the basis of her caste would amount to significant harm, or that given her gender, caste or circumstances, she would face a real risk of significant harm.[99] Moreover, the Authority was not satisfied that poor prison conditions during any detention would be due to an intention to inflict pain or suffering or cause extreme humiliation, taking into account the applicant’s circumstances cumulatively.[100]
[98] SYG3693/2017 CB 638–639 [77]-[78]
[99] SYG3693/2017 CB 639 [79], [85]
[100] SYG3693/2017 CB 640 [87]-[89]
The present proceedings
These proceedings began with three separate show cause applications filed by each applicant on 28 November 2017.
The matters came before me for a show cause hearing on 28 September 2018. By that stage, each application had been amended. The applicant father’s amended application raised the following grounds:
Ground One
The Authority misapplied the well-founded fear test.
Particulars
Authority accepted that Applicant was harassed, questioned and physically harmed by the military in 1987 and has scars, as this is consistent with the country information and not uncommon during the civil war. I accept that he was kept for a week on one occasion and his arm was broken on another occasion. I accept that he was released on each time. At CB 625: 26
Authority accepts the proposition that there are ongoing instances detention and torture: CB 626: at 28.
I accept there is continuing detentions and tortured against Tamils who may be suspected of LTTE or criminals, even since the end of the war. However, I do not accept that the applicant, his brother or his family are suspected LTTE or criminals
Ground two
The Authority exceeded its jurisdiction by reading into evidence its own opinion.
Particulars
Authority accepted that Applicant was harassed, questioned and beaten by the military and his brother went missing. I accept that his scarring a result of his injuries. However, I consider these events were remote in time and not uncommon in the context of the civil war. CB 625: 26 and at 626 at 26
Ground three
The Authority fell into a jurisdiction error by taking into account an irrelevant consideration.
Particulars
Authority reasoned that the war ended in 2009 and LTTE is a spent force. Applicant’s children were born in Tamilnadu and have never been to Sri Lanka and the applicant has never been involved in political protests or activism. CB 626: at 27
Ground four
The Authority fell into a jurisdiction error by taking into account an irrelevant consideration.
Particulars
Applicant’s children were born in Tamilnadu and have never been to Sri Lanka and the applicant has never been involved in political protests or activism. CB 626: at 27
Ground five
The Authority blindly followed the country information.
Particulars
Particular and submissions
Authority followed UNHCR eligibility guidelines and failed to note the guidelines use word ‘may’ when it refers to profiles of person who may attract adverse attention of the Sri Lanka authorities. The list provided in the UNHCR guidelines is non-exhaustive.
Ground six
The Authority took into account irrelevant consideration.
Particulars
Authority reasoned: CB 626: at 28
Fourthly many thousands fled to Tamilnadu in similar circumstances… and many are and have returned without harm.
Ground seven
The Authority’s decision is unreasonable. (Wednesbury unreasonableness).
Particulars and Submissions
It is submitted that Applicant has been truthful in his evidence. Except for minor and irrelevant aspects, there is no credibility issue. Applicant’s age, his past persecution, his life in India, his missing brother, his two sons still under his care, his experience, leaving Sri Lanka illegally in the late eighties – all these aspects taken cumulatively will give rise to harm. Rather than dealing with all these aspects cumulatively, Authority dealt with these aspects separately and severally. It is submitted that these matters be considered cumulatively. This will avoid any possible argument that one notion subsuming the other/s.
Ground eight
The Authority’s decision is not supported by evidence.
Particulars
Authority referred to Applicant if he is returned to Sri Lanka in the context of leving the country illegally. Applicant claimed that he has no family in Sri Lanka. CB 268: at second last bullet point.
(errors in original)
The applicant mother’s application was amended on the same day and raised the following new grounds:
Ground One
The Authority misapplied the well-founded fear test.
Particulars
Authority failed to give adequate weight to Applicant’s husband being imputed with LTTE profile and its impact on the Applicant.
Ground two
The Authority fell into jurisdictional error.
Particulars
Authority, while acknowledging the Applicant’s vulnerabilities, did not deal with issue as to how Applicant will stand before a magistrate and in prison on return for bail. Authority failed to deal with the vulnerabilities of the Applicant in dealing with this situation. Authority stated:
I have considered the level of education and vulnerabilities. However, the applicant was provided with representation and having listened to the interviews I am satisfied that those circumstances were taken into account CB 628: 10
Authority failed to accept that Applicant’s vulnerabilities will place her in greater suspicion and give rise to harm. Especially Authority failed to deal with the issue as to how Applicant will be able to deal with the psychological issues such as anxiety, depression and PTSD, in prison and before a magistrate on return to Sri Lanka. CB 628: at 11. In any event it is unclear how Applicant can deal with these psychological issues when in prison and there is no indication whether Applicant will be fit enough to stand before a magistrate on the one hand and will be provided with representation, as indicated by the Authority above, or medical support for that matter on the other hand. Applicant’s mental vulnerabilities were not analysed in the context of Sri Lankan prison conditions.
Ground three
The Authority fell into a jurisdiction error by misinterpreting the country information.
Particulars
Authority reasoned that DFAT advises that the risk of torture or mistreatment of for people suspected of an offence under the IAEA is low. CB 690: 89
Authority misinterpreted the country information in that ‘low’, means it is still not over but still possible.
Ground four
The Authority fell into a jurisdiction error by not taking into account a relevant consideration.
Particulars
Authority failed to take into account how Applicant as female will deal with the prison conditions. There is no explicit reference to females in prison on return for offence for leaving Sri Lanka illegally albeit in the late eighties. Authority failed to deal with issue as to how Applicant, being a female, be able to deal with the overcrowding of prison. CB 640: 87 As the overcrowding is not attributable to gender, it is unclear how Authority drew comfort that Applicant will be able to deal with prison overcrowding and poor prison conditions.
Ground five
The Authority blindly followed the country information.
Particulars
Particular and submissions
Authority followed UNHCR eligibility guidelines and failed to note the guidelines use word ‘may’ when it refers to profiles of person who may attract adverse attention of the Sri Lanka authorities. The list provided in the UNHCR guidelines is non-exhaustive. The point is Applicant may be imputed with LTTE profile because of her husband who was suspected at one stage as having LTTE connections and whose details may still be with the Sri Lankan authorities.
(errors in original)
Given that the matters were related and that there was some factual complexity involved, I ordered that the matters be heard concurrently and dispensed with the need for a show cause hearing. The matters were listed for a final hearing on 24 June 2019.
I noted that a fourth related matter FHC17, had been heard on a final basis before Judge Smith and the judgment was at that time reserved.[101]
[101] See [3] and footnote 2 above
The solicitor for the applicants foreshadowed a possible further amended application to raise as an additional issue the citizenship status of each of the applicants. I gave the applicants time to further amend their application and file additional evidence within two weeks after the delivery of judgment in FHC17.
Judge Smith delivered judgment in FHC17 on 23 November 2018 dismissing the judicial review application. No appeal was filed within time but applicant FHC17 subsequently applied for an extension of time to appeal. That application was dismissed by Stewart J on 4 June 2019.[102]
[102] See footnote 3 above
On the same day, submissions were filed on behalf of the applicant father addressing the issue of nationality. On 20 June 2019 an affidavit by the applicants’ solicitor made on 19 June 2019 was filed annexing various documents said to have some bearing upon the issue of nationality.
At the trial of the matters on 24 June 2019 the applicants’ solicitor handed up a proposed further amended application raising, in addition to the existing grounds, a new ground asserting error on the basis of a failure to enquire into the issue of nationality.
The Minister’s solicitor strenuously objected to the granting of leave for the further amended application or the receipt of the affidavit into evidence. Nevertheless, the issue of nationality having been foreshadowed at the hearing on 28 September 2018, and addressed, at least in the case of FHC17 (by Stewart J), I granted the leave sought on condition that the further amended application be filed in each matter by 28 June 2019.
I received the affidavit subject to relevance. Apart from one document in the German language which was of no conceivable relevance, the documents annexed to the solicitor’s affidavit provided at most an example of what the Authority might have found if it had conducted general enquiries into the issue of Sri Lankan citizenship. That information is general in nature and might be described as country information.
The further amended application handed up in court raises the following additional ground of review:
Authority erred in law, with the error being a jurisdictional error, in that it failed to observe procedures and delve into an inquiry as to the nationality of one or more applicants
Particulars
Authority did not make an assessment based on Sri Lankan and Indian laws and the requisite factors to discern that one or more applicants might have become stateless and therefore the Authority is in breach of [s.5H(1)] of the Migration Act.
The nationality issue
The applicants thereupon asserted that they are, or may be, stateless or that they might have lost their Sri Lankan citizenship due to being dual citizens of another country (presumably India).
In respect of the applicant father and the applicant mother, these contentions face difficulties. First, the applicant father claimed to be a Sri Lankan national. That claim was accepted by both the delegate and Authority and no contrary contention was raised with the Authority following the delegate’s decision. Secondly, although the applicant mother claims to be stateless, the delegate found that she was a Sri Lankan national and that decision was not challenged before the Authority.
Following the hearing on 24 June 2019 I considered whether the Authority came under a duty to enquire further into the issue of nationality in circumstances where a clear finding of Sri Lankan nationality had been made in respect of each applicant by the delegate, the applicants were represented by an agent who made submissions to the Authority following the delegate’s decision and no challenge as to nationality was made in respect of the applicant father and the applicant mother. There was a live issue of nationality in relation to the applicant son which is addressed in the Authority’s reasons and in respect of which the Minister has conceded error.
Judgment in all three applications was due to be delivered on 23 August 2019. That was deferred, however, to enable the parties to discuss further the nationality issue. Following the Minister’s concession in the case of the applicant son, I agreed to conduct a further hearing, limited to the issue of nationality, in respect of the applicant father and the applicant mother. The applicants and the Minister both filed further written submissions on that issue and made further oral submissions at the resumed hearing on 29 October 2019.
I prefer the Minister’s submissions on the issue of the nationality of the applicant father and the applicant mother.
In their written submissions, the applicant father and the applicant mother state it is possible they were stateless for two alternative reasons:
a)first, they never had citizenship because they are Tamils of Indian origin and former Sri Lankan permanent residents who never invoked their right to Sri Lankan citizenship; or
b)alternatively, if they were Sri Lankan citizens, they had lost that citizenship by virtue of applying for refugee status through the operation of ss.20 and 21 of the Citizenship Act 1948 (Sri Lanka) (Sri Lankan Citizenship Act).
It appears that the applicants are alleging, in substance, that the Authority misconstrued the Sri Lankan Citizenship Act in determining their nationality and their “receiving country” for the purposes of s.5(1) of the Migration Act.
I disagree. It was open to the Authority to conclude, on the evidence before it, that the applicants were citizens of Sri Lanka (and that their citizenship had not been lost).
Insofar as the applicants rely on FER17, the principles in that decision regarding entitlement to citizenship under the Sri Lankan Citizenship Act are not relevant to the applicants’ claim.
I accept that applying the wrong law with respect to a person’s nationality when determining his or her application for a protection visa will constitute legal error[103] so long as that error was material to the decision.[104] It is therefore necessary to consider the applicable law.
[103] FER17 at [85]
[104] Hossain v Minister for Immigration (2018) 264 CLR 123; Minister for Immigration v SZMTA (2019) 93 ALJR 252
Section 5H(1) of the Migration Act provides:
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Section 5J(1) of the Migration Act provides that a person has a “well‑founded fear of persecution” if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
The term “receiving country” is defined in s.5(1) of the Migration Act as:
(a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.
The Authority made no express findings regarding the applicant father’s nationality in refusing his application for a SHEV. However, it did accept that the applicant was “a married Tamil Hindu male of Sakkiliar caste who was born in Sri Lanka and fled to India in 1987 after his home was burned down and his wife suffered burns”.[105] Accordingly, if the applicant father had no country of nationality, his receiving country under s.5(1) of the Migration Act would appropriately be considered to be the country of his former habitual residence, namely India.
[105] SYG3695/2017 CB 623 at [14]
It is clear from the Authority’s reasoning that it assessed the applicant father’s application for a SHEV on the basis that his receiving country was Sri Lanka.[106] This carries an implication that, in determining the applicant father’s receiving country, the Authority found that he was a national of Sri Lanka.
[106] SYG 3695/2017 CB 626 at [27]
The Authority accepted that the applicant mother was born in Sri Lanka but fled to India, where she lived for 26 or 27 years.[107] It found that she was not a citizen of India and that she was a citizen of Sri Lanka, on the basis of her Sri Lanka refugees identity card and her Sri Lankan birth certificate.[108] Accordingly, the Authority assessed her application for a SHEV on the basis that her receiving country was Sri Lanka.
[107] SYG3693/2017 CB 629, 631 at [16], [27]
[108] SYG3693/2017 CB 631 at [27]
It was open for the Authority to find, on the evidence before it, that the applicants were Sri Lankan citizens. To the extent that the applicants now claim that they “might have been stateless” throughout their lives or make claims or arguments that were not before the Authority, those submissions seek impermissible merits review. The question before this Court is whether, on the evidence before it, the Authority was correct to conclude that they were citizens of Sri Lanka (and that such citizenship had not been lost).
The relevant provision of the Citizenship Act for the Court to consider in assessing the applicants’ nationality is s.5(1). This provides:
Subject to the other provisions of this Part, a person born in Sri Lanka on or after the appointed date shall have the status of a “citizen of Sri lanka” if at the time of his birth either of his parents is or was a citizen of Sri Lanka.
The “appointed date” is defined in s.28(1) of the Sri Lankan Citizenship Act as 15 November 1948. The applicant father was born after the “appointed date” on 31 December 1967.[109] Further, the applicant father was born in Sri Lanka.[110] Likewise, the applicant mother was born in Sri Lanka on 25 September 1969.[111]
[109] Applicant’s Statement (SYG3695/2017 CB 147); see also applicant’s judicial review submissions (AS) at [8]
[110] Ibid.
[111] SYG3693/2017 CB 119
On the evidence available to the Authority, it was open for it to conclude that the applicant father was a national of Sri Lanka. Although the applicant father listed his current citizenship in his application for a SHEV as “N/A”:[112]
a)in his SHEV application, he listed his citizenship at birth, and that of his parents, as Sri Lankan;[113]
b)in support of his application, he provided a statement which said “I am a citizen of Sri Lanka”;[114]
c)in support of his application, he provided a Sri Lanka refugees identity card;[115]
d)in his induction interview, the applicant said that his citizenship, and that of his parents, was Sri Lankan;[116] and
e)his sons also submitted SHEV applications, in which they stated that the applicant father’s citizenship was Sri Lankan.[117]
[112] SHEV Application, Q18 (SYG3695/2017 CB 123)
[113] SHEV Application, Qs 17, 20, 21 (SYG3695/2017 CB 123)
[114] Applicant’s Statement (SYG3695/2017 CB 147); see also AS[8]
[115] Sri Lanka refugees identity card (SYG3695/2017 CB 46-47).
[116] Unauthorised Maritime Arrival and Induction Interview, 6 August 2014 at 3 and 8 (SYG3695/2017 CB 24, 29).
[117] SHEV Applications (applicant’s sons), Q20 (SYG3695/2017 CB 152, 181)
Accordingly, although the Authority made no reference to the Sri Lankan Citizenship Act in its reasons, in the absence of evidence suggesting that the applicant father’s parents were not citizens of Sri Lanka, the available evidence supported a conclusion that the applicant father was in fact a citizen of Sri Lanka by virtue of s.5(1) of the Sri Lankan Citizenship Act.
Although the applicant mother listed her current citizenship in her application for a SHEV as “N/A”[118] and stated in her induction interview that she was “stateless”,[119] it was nonetheless open to the Authority to conclude that the applicant mother was a national of Sri Lanka. In addition to the matters addressed by the Authority in [27] of its decision:[120]
a)in her SHEV application, the applicant mother listed her citizenship at birth, and that of her parents, as Sri Lankan;[121]
b)in her induction interview, the applicant mother stated the citizenship of her mother was Sri Lankan;[122]
c)the applicant mother’s birth certificate lists each of her parents’ place of birth as Nawalapitiya (in Sri Lanka) and race as “Sri Lankan Tamil”;[123] and
d)the applicant mother’s sons also submitted SHEV applications, in which they stated that the applicant mother’s citizenship was Sri Lankan.[124]
[118] SHEV Application, Q18 (SYG3693/2017 CB 90).
[119] Unauthorised Maritime Arrival and Induction Interview, 6 August 2014 at 3 (SYG3693/2017 CB 3)
[120] SYG3693/2017 CB 631
[121] SHEV Application, Qs 17, 20, 21 (SYG3693/2017 CB 90)
[122] Induction Interview at 8 (SYG 3693/2017 CB 8)
[123] Applicant Birth Certificate (translated) (SYG3693/2017 CB 119)
[124] SHEV Applications (applicant’s sons), Q21 (SYG3693/2017 CB 152, 181)
The available evidence (provided by the applicant mother and the applicants’ family members) indicated that her parents were citizens of Sri Lanka (which, because the applicant mother was born in Sri Lanka after 15 November 1948, would make her Sri Lankan by descent) and in the absence of evidence to the contrary, this supported the conclusion reached by the Authority that the applicant mother was in fact a citizen of Sri Lanka.
The applicants’ submission that they were never citizens of Sri Lanka because they are Tamils of Indian origin and a former Sri Lankan permanent resident who never invoked their right to Sri Lankan citizenship (and their reliance on FER17 to support that submission) is misconceived:
a)in FER17, the Full Federal Court was required to consider s.5(2) of the Sri Lankan Citizenship Act, which applies to persons born outside of Sri Lanka and requires registration of their birth with the appropriate authorities in order for the person to obtain citizenship. The Full Federal Court affirmed at [78] that the meaning of “a national” and “nationality” for the purposes of the Migration Act did not extend to a person simply on the basis that they had the capacity to acquire another country’s citizenship; and
b)that decision has no application in the current circumstances. Unlike s.5(2) of the Sri Lankan Citizenship Act, s.5(1) does not carry any requirement for a person to register their birth in order to obtain citizenship. As mentioned above, as the applicants were born in Sri Lanka, s.5(1) is the operative provision in considering the status of the applicants’ Sri Lankan citizenship.
Loss of Sri Lankan citizenship
The applicants submit in the alternative that, even if they were once citizens of Sri Lanka, they had lost that citizenship by virtue of applying for refugee status through the operation of ss.20 and 21 of the Sri Lankan Citizenship Act. Those provisions address restrictions against dual citizenship of Sri Lankan citizens.
I reject that contention:
a)in relation to s.21 of the Sri Lankan Citizenship Act, that provision only applies to persons who are Sri Lankan citizens by registration. As set out above, the applicants were born in Sri Lanka and the evidence suggested that their parents were Sri Lankan citizens. It was open to the Authority to find that the applicants were citizens by descent under s.5(1) of the Sri Lankan Citizenship Act. Accordingly, s.21 is not relevant; and
b)in relation to s.20 of the Sri Lankan Citizenship Act, that provision is only triggered where the relevant person is or becomes “a citizen of any other country”. The mere act of applying for refugee status in Australia (which itself is distinguished from applying for Australian citizenship) will not be sufficient to satisfy this requirement.
Accordingly, the Authority did not misconstrue the Sri Lankan Citizenship Act in reaching the conclusion that the applicant father and applicant mother were citizens of Sri Lanka. There was no obligation to enquire further.
The remaining grounds of review – applicant father
I agree with the Minister’s submissions concerning the other judicial review grounds advanced on behalf of the applicant father.
Ground one
By ground one, (if not abandoned in the further amended application) the applicant contends that the Authority misapplied the well-founded fear test. The particulars refer to [26] of the Authority’s decision record. However the material as quoted is not an accurate record of the Authority’s findings at [26]. This ground does not rise above disagreement with the Authority’s findings. While the Authority did accept the applicant had suffered past harm, in light of the significantly changed country situation and the end of the civil war the Authority did not accept the applicant faced a real chance of harm on the basis of actual or imputed LTTE links.[125] In coming to that finding the Authority did not misapply the criteria in s.5J and made findings that were open to it for the reasons it gave. As such this ground does not raise an arguable case for the relief claimed.
[125] [34]
Ground two
The applicant contends that the Authority “exceeded its jurisdiction by reading into evidence its own opinion”. The particulars take issue with the Authority’s findings at [26]. The Authority’s characterisation of the applicant’s account of past harm, which was claimed to have occurred in 1987, as “remote in time and not uncommon in the context of a civil war”,[126] could not be said to be a mischaracterisation of that evidence. Further, and in any event, the Authority’s ultimate rejection of the applicant’s claims that he would be imputed with LTTE links was not based solely on this finding but rather in light of the applicant’s circumstances as a whole and country information as set out at [26]-[34] of its decision record. As such its conclusion was open to it for the reasons that it gave. To the extent the particulars contend that once suspected of an LTTE connection the applicant will always be suspected, this seeks impermissible merits review and does no more than disagree with the Authority’s findings. Ground two does not raise an arguable case.
Other grounds[127]
[126] [26]
[127] The further amended application contained only five grounds but as a precaution and for the sake of clarity I have retained the numbering in the amended application
By grounds three, four and six the applicant contends the Authority had regard to the following “irrelevant considerations” at [27] of the Authority’s decision:
a)“the war ended in 2009 and the LTTE is a spent force”;
b)the applicant’s children were born in Tamil Nadu and have never been to Sri Lanka;
c)the applicant has never been involved in political protests or activism; and
d)thousands had fled to Tamil Nadu in similar circumstances and many had returned without harm.
For a matter to constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision maker is forbidden or prohibited from taking into account.[128] The applicant has not advanced, by reference to the scope and purpose of the Migration Act, why the factors identified in those paragraphs should be characterised as “irrelevant considerations”. Further, I accept that these considerations could not be said to be irrelevant in the context of the applicant’s claim that he and his family would be accused of being LTTE due to their race, having fled to Tamil Nadu and having lived overseas for an extended period of time. Nor did the Authority narrow its consideration of the applicant’s claims to these factors.
[128] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; SZTBJ v Minister for Immigration & Anor [2015] FCCA 580 at [95]
Ground five
By ground five the applicant contends the Authority “blindly followed the country information”. The particulars take issue with the Authority’s consideration of the UNHCR[129] guidelines in relation to profiles of person who may attract adverse attention. These guidelines are considered at [30] of the Authority’s decision. However, the Authority does not refer to these profiles in relation to the UNHCR guidelines, but rather the Authority referenced the DFAT country information in its consideration of profiles of risk.[130] This contention fails at a factual level. In any event, it is well settled that the country information to which the decision maker has regard and the weight it gives that information is a matter for the decision maker.[131]
[129] United Nations High Commissioner for Refugees
[130] [30]–[31]
[131] see NAHI v Minister for Immigration [2004] FCAFC 10, and VWFW v Minister for Immigration [2006] FCAFC 29
Ground seven
By ground seven the applicant contends the Authority’s decision was unreasonable. The particulars and submissions to this ground do not particularise what is contended to be unreasonable. Rather, the particulars and submissions contend that when considered cumulatively, which the applicant appears to claim the Authority failed to do, the applicant’s claims give rise to harm. Putting aside that at its core this ground invites impermissible merits review, it also fails at a factual level. The Authority gave cumulative consideration to the applicant’s claims at [71] and [87].
Ground eight
Ground eight contends that the Authority’s decision is not supported by evidence. This fails at a factual level. The Authority considered the applicant’s circumstances; having departed Sri Lanka illegally and that he has no immediate family living there.[132] However, the Authority’s finding at [64], that he could rely upon his daughter’s parents-in-law to provide assistance or surety based on evidence they had previously provided assistance, was open to it in light of the applicant’s evidence at CB 150 that:
[132] [60]–[70]
My daughter’s partner tried to get copies of my documents through his family in Sri Lanka…
On that basis, there was evidence to support the Authority’s finding at [64]. The Authority’s findings relating to the applicant’s claim to fear harm due to his illegal departure and lack of familial links in Sri Lanka were open to it on the evidence before it and for the reasons it gave.
Remaining grounds – the applicant mother
I also agree with the Minister’s submissions concerning the remaining grounds of review advanced on behalf of the applicant mother.
Ground one
By ground one the applicant contends that the Authority “misapplied the well-founded fear test”. The applicant contends that the Authority “failed to give adequate weight” to the applicant’s husband’s imputed LTTE profile. The Authority considered the applicant’s claims relating to her husband’s imputed LTTE profile and accepted at [17] and [29] that he had been questioned and physically harmed by the military in the 1980s, but found they were remote in time and not uncommon during the civil war. It did not accept that the applicant, her husband or his family were LTTE,[133] nor did it accept the applicant or her family, including her husband, were suspected LTTE or criminals[134] or that the applicant fit a profile of risk.[135] On the basis of these findings the Authority rejected the applicant’s claims that the applicant and her husband had been imputed with an LTTE profile.[136] This finding was open to it for the reasons it gave and clearly shows the applicant’s husband’s profile and any impact it may have had on the applicant was considered and rejected by the Authority. There is no indication that the Authority misapplied the test and ultimately this ground does not rise above disagreement with the Authority’s findings.
[133] SYG3693/2017 CB 632 [29]
[134] SYG3693/2017 CB 632 [31]
[135] SYG3693/017 CB 632 [34]
[136] SYG3693/2017 CB 633 [36]
Ground two
Ground two is a general assertion that “the Authority fell into jurisdictional error”. The particulars take issue with the Authority’s alleged failure to consider the applicant’s vulnerabilities, in particular her mental health conditions, in the context of the Sri Lankan prison conditions and court appearances. A claim that the applicant will fear harm on the basis of her mental health conditions should she be imprisoned for her illegal departure from Sri Lanka upon return is not a claim that was made or arises squarely upon the material. In any event, the Authority considered the applicant’s mental state and the “process and the outcome of the prosecution the applicant will face from the Sri Lankan authorities arising from illegal departure”[137] and concluded it was not satisfied the applicant would face a real chance of persecution due to illegal departure. At [88] the Authority found that “even considering her past trauma, and mental vulnerabilities, I do not accept that the applicant faces significant harm for illegal departure”.
[137] SYG3693/2017 CB 638 [72]
Ground three
By ground three the applicant claims the Authority misinterpreted the DFAT report which indicates the risk of torture or mistreatment from an offence under the Immigrants and Emigrants Act is low. How the applicant contends that the Authority is said to have misinterpreted the term “low” is unclear. In any event, there is nothing on the face of the Authority’s decision record which indicates that the Authority has misinterpreted “low” risk. The Authority considered the DFAT report together with the applicant’s profile and circumstances, but did not accept the applicant faced a real chance of torture or mistreatment upon arrival, during questioning or brief detention under the Immigrants and Emigrants Act.[138]
[138] SYG3693/2017 CB 637 [69]
Ground four
Ground four contends that the Authority did not take into account a relevant consideration, this being the impact of prison conditions on the applicant as a female. However, the Minister understands, and I accept, this to be a contention the Authority failed to consider a claim that the applicant, as a female, would face harm in prison due to her illegal departure. There are several difficulties with this proposition. First, no such claim was advanced by the applicant, and this is a reconstruction of the applicant’s claims. The Authority addressed the particular claims made by the applicant by finding that the likelihood the applicant would be detained was remote, but even so, accepted that the applicant would experience poor prison conditions if detained. However, the Authority concluded that this did not constitute serious harm[139] or significant harm.[140]
[139] SYG3693/2017 CB 638 [70]
[140] SYG3693/2017 CB 640 [87]
Further, to the extent a claim relating to harm arising from the applicant’s illegal departure and imprisonment arose on the material, it was considered. The Authority took into account the applicant’s cumulative circumstances when finding that the applicant does not face a real chance of persecution due to her illegal departure from Sri Lanka.[141] Even having regard to the applicant’s gender, amongst other circumstances, the Authority concluded that it was not satisfied that any brief detention, questioning, fine or other penalty due to the Immigrants and Emigrants Act would amount to significant harm.[142]
[141] SYG3693/2017 CB 638 [72]
[142] SYG3693/2017 CB 640 [89]
Ground five
By ground five the applicant contends that the Authority “blindly followed” country information. The particulars take issue with the Authority’s consideration of the UNHCR guidelines in relation to profiles of people who may attract adverse attention. These guidelines are considered at [33] of the Authority’s decision. However, the Authority does not refer to these profiles in relation to the UNHCR guidelines, but rather the Authority referenced the DFAT country information in its consideration of profiles of risk.[143] The Authority did not “blindly follow” the UNHCR guidelines. It is well settled that the country information to which the decision maker has regard and the weight it gives that information is a matter for the decision maker.[144]
[143] SYG3693/2017 CB 632 [34] – [35]
[144] see NAHI and VWFW
Conclusion
The applicant father and the applicant mother have failed to establish that the decisions of the Authority in respect of them are affected by any jurisdictional error. The decisions are therefore privative clause decisions and each of their applications must be dismissed.
I will hear the parties as to costs.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 November 2019
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