FFQ17 v Minister for Immigration and Border Protection
[2023] FedCFamC2G 46
Federal Circuit and Family Court of Australia
(DIVISION 2)
FFQ17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 46
File number(s): MLG 2605 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 2 February 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – consideration of whether the Authority failed to consider applicant’s claim of imputed association with the LTTE – consideration of whether the Authority evaluated the cumulative weight of the applicant’s claims of harm – consideration of whether Authority’s reasoning lacked a necessary intermediate step – matter distinguished from Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 – consideration of Authority’s finding that treatment of applicant reduced in severity in circumstances where he was threatened with a gun following civil war – claim of unreasonableness – finding that Authority’s findings were reasonably open on the evidence before it – no jurisdictional error established – application dismissed with costs. Cases cited: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 27 September 2022 Date of hearing: 27 September 2022 Place: Melbourne Counsel for the Applicant: Ms G Costello, KC Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 2605 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FFQ17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
deputy chief JUDGE MERCURI
DATE OF ORDER:
2 February 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 30 November 2017 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 8 November 2017, by which the Authority affirmed a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection (‘the Minister’), to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (‘protection visa’).
The applicant by his application raised three grounds of review. At the hearing, leave was sought and granted (in circumstances where the first respondent did not oppose leave being granted) for a fourth ground to be raised.
Background
The applicant is a Sri Lankan national. He arrived in Australia as an unauthorised maritime arrival in September 2012 and initially applied for a protection visa in November 2013.[1] That initial application, which was ultimately not valid, was supported by a statutory declaration made on 4 November 2013 (‘November 2013 statutory declaration’).[2]
[1] Court book at pages 9 to 25.
[2] Court book at pages 61 to 63.
Application for protection visa on 16 August 2016
On 16 August 2016, the applicant, after being invited to do so, made a valid application for a protection visa, which is the subject of these proceedings.[3] The applicant provided a further statutory declaration in support of this application, made on 19 July 2016, in which he indicated that he wished to rely upon the information previously provided in his November 2013 statutory declaration.[4]
[3] Court book at pages 107 to 158.
[4] Court book at pages 150 to 152.
On 14 February 2017, the applicant’s visa application was refused by a delegate of the first respondent.[5] A copy of the delegate’s decision record is at pages 192 to 203 of the court book.
[5] Court book at pages 189 to 203.
Referral to Authority for review on 17 February 2017
On 17 February 2017, the application was referred to the Authority for fast-track review under Part 7AA of the Migration Act 1958 (‘the Act’).[6]
[6] Court book at pages 205 to 218.
The applicant’s representative at the time provided two written submissions in support of the review application, dated 10 March 2017 and 20 March 2017.[7]
[7] Court book at pages 220 to 221; Court book at pages 226 to 231.
On 8 November 2017, the Authority affirmed the delegate’s decision and refused to grant the applicant a protection visa.[8]
[8] Court book at pages 233 and 234.
Authority decision
The Authority’s reasons for its decision is set out a pages 237 to 250 of the court book.
The Authority set out its understanding of the applicant’s claims at paragraph [5] of the decision record. The Authority accepted that the applicant was a Tamil Hindu from the Northern Province of Sri Lanka.[9]
[9] Authority decision record dated 8 November 2017 at paragraph [8].
At paragraphs [10] and [20] of the decision record, the Authority noted that the applicant was generally consistent in his claim to have suffered harassment and mistreatment by the Sri Lankan Army (‘SLA’), although noted that the specific details of the applicant’s claims had varied over time. Notwithstanding this, having regard to the amount of time which had passed since the applicant’s initial application, the trauma of the events and the pressures that the applicant had faced since, the Authority concluded that the inconsistencies in the applicant’s claims and evidence were understandable.
Relevantly, at paragraph [21], the Authority said:
21.… I consider his evidence at the visa interview reflects the reality of his claims. During that interview the applicant was asked very specific questions, and it became clear that the detentions and mistreatment at the army base, as well as the beating at his relative’s home that required him to be hospitalised, all took place in around 2009, prior to the end of the war. He was not detained after that, but the Army would come to his family’s home, harass and question him. On one occasion he was threatened with a gun. He did not claim in the visa interview that he was taken from his home, taken to the base, jungle or any vacant land, after the war ended, as he had in his earlier written evidence.
At paragraph [22], the Authority set out its factual findings in relation to the applicant’s claims, and relevantly, concluded that:
22.Weighing the applicant’s evidence, his submissions about his memory and the consistency of his evidence, the country information before me, and the specific and detailed questioning from the delegate, I accept the applicant was detained and interrogated on up to six occasions prior to the end of the civil war in 2009. I accept he was seriously beaten at least twice, and that on one occasion in 2009 he was hospitalised. I accept his older brother received similar treatment, and was detained and beaten on at least one occasion in 2008. As his brother was older, it may have been the case the authorities were more concerned that he was a combatant or LTTE supporter. I give significant weight to the fact that it was not only he and his brother that were targetted (sic), but these were systematic round-ups, and that other Tamil males in his area were required to report to the base and suffered the same treatment. This suggests to me the applicant and his brother did not have a specific profile.
Further, at paragraph [23], the Authority concluded that:
23.… I do not accept that he was detained, taken to the army base or elsewhere, beaten or otherwise seriously harmed outside of his home after the war was ended. I find that he has no adverse profile, and consider that any questioning and monitoring, which I accept involved harassment and threats, was undertaken in the context of routine monitoring and harassment of Tamils that occurred in the north and east of the country during the post-war period. In that context I consider his claim that the CID or the SLA continue to visit his family and ask about his whereabouts to be an exaggeration. …
At paragraph [24], the Authority referred to the relevant country information.
At paragraph [25], the Authority made the following findings in relation to the applicant:
25.I accept that the applicant, as a young Tamil male in the north living near an army base, was subjected to serious mistreatment and harassment by the SLA and authorities before and after the war. However, I am not satisfied and do not accept that he was ever seriously suspected of being in the LTTE, or that he had an adverse profile or was imputed to have a profile connected to the LTTE through his brother, uncle or any family member. …
At paragraph [26], the Authority made findings about the nature and extent of harm that the applicant suffered during the war and after the war came to an end. The Authority accepted that on at least one occasion, the SLA threatened the applicant with a gun and that the treatment that the applicant received was ‘significant’. However, the Authority went on to say that the treatment received by the applicant ‘reduced in severity and frequency following the end of the war’. In this context, the Authority went on to say:
26.… Had he an actual or imputed LTTE profile, I do not accept that the interest and threat from the authorities would have decreased or that he would have been able to avoid arrest, long term detention, charge or rehabilitation. … While I do not discount the harm the applicant and his family experienced in the past, the fact that he faced no serious period of detention, displacement, rehabilitation or other physical harm in the post-war period strongly indicates to me that he had no adverse profile whether, directly or through his family members.
The Authority further expanded on this reasoning in paragraph [27] of its decision and at paragraphs [28] to [32], references the relevant country information.
The Authority then went on to consider whether the applicant faced a risk of harm as a result of having left the country illegally and having sought asylum.[10] The Authority also considered whether the applicant faced a risk of harm on his return as a result of his time in Australia or the fact that his brother has been granted asylum in this country.[11] The Authority ultimately concluded at paragraph [49] that none of these matters would put the applicant at risk of serious harm if he were to return to Sri Lanka.
[10] Authority decision record dated 8 November 2017 at paragraphs [35] to [43]; paragraphs [45] to [49].
[11] Authority decision record dated 8 November 2017 at paragraph [44].
The Authority therefore concluded at paragraphs [50] to [51] that the applicant did not face a real chance of serious harm if he were to return to Sri Lanka and therefore did not meet the requirements for refugee status.
The Authority then went on to consider Australia’s complementary protection obligations at paragraphs [52] to [56] and for similar reasons discussed above, concluded that the applicant did not face a real risk of significant harm.[12]
[12] Authority decision record dated 8 November 2017 at paragraph [57].
For each of these reasons, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
Grounds of review
As indicated, the applicant raises four grounds of review. I will deal with each in turn.
Ground 1
The applicant’s first ground is set out in his amended application in the following terms:
1.The IAA failed to evaluate the claim that the motivation of the SLA in putting a gun to his head and threatening to shoot him after the war, and their violence to him during the war, was his imputed association with the LTTE. As such, the IAA failed to carry out its jurisdictional task.[13]
[13] Amended Initiating Application filed on 2 September 2022.
In support of ground 1, it was submitted that the Authority failed to properly consider the submissions made by the applicant and failed to ‘undertake the necessary speculative task of evaluating whether there was a real chance of persecution’ for the reasons claimed.[14] It was further submitted for the applicant that there was no evidentiary basis upon which the Authority could properly conclude that the reason for the mistreatment suffered by the applicant (and his brother) at the hands of the SLA was not because of an imputed Liberation Tigers of Tamil Eelam (‘LTTE’) profile, but rather, was simply the result of systemic mistreatment of young male Tamils from the north.[15]
[14] Applicant’s Outline of Submissions filed on 2 September 2022 at paragraph [12].
[15] Applicant’s Outline of Submissions filed on 2 September 2022 at paragraph [13].
At the heart of this ground is the submission by the applicant that there was no evidence upon which the Authority could make a finding that the SLA routinely treated young male Tamils from the north, as opposed to Tamils imputed with LTTE involvement, in the manner in which they treated the applicant. The applicant submits that the statement by the Authority at paragraph [21] of the decision record that it accepted that the applicant’s claims at the SHEV interview reflected the reality of his claims, was inconsistent with the Authority’s ultimate finding in circumstances where the applicant’s claims included a claim that the SLA had held a gun to his head and threatened to kill him because they thought he was involved with the LTTE (and his brother was involved with the LTTE).[16]
[16] See Applicant’s Outline of Submissions filed on 2 September 2022 at paragraph [16].
The applicant says that the Authority failed to evaluate the claim made by the applicant that the reason for the SLA putting a gun to his head and threatening him after the war, as well as the violence towards him during the war, was because the SLA was concerned that he was associated with the LTTE.[17]
[17] Applicant’s Outline of Submissions filed on 2 September 2022 at paragraph [21].
For the following reasons, I do not accept this submission.
The approach that a decision maker must take in considering claims made by an applicant for judicial review has recently been considered by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. Relevantly, the plurality (Keifel CJ, Keane, Gordon and Steward JJ) said at [24]:
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. … the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weigh or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder. (citations omitted)
Moreover, at [25] the plurality further stated:
25.… the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. … The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations…. (citations omitted)
The plurality went on to caution against the use of phrases like ‘proper, genuine and realistic consideration’ as such phrases run the risk of the court on judicial review improperly entering the realm of merits review.[18]
[18] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [26].
Ultimately, at [27] the plurality said:
27.None of the preceding analysis detracts from or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials, or a substantial and clearly articulated argument; misunderstood the applicable law, or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
I accept that the applicant claimed that the reason why he had been subjected to harassment, abuse and intimidation, conduct which on any scale would have been described as serious and severe, was because the SLA had formed a view that he was linked to the LTTE. However, I agree with the submission for the Minister that the Authority considered this claim but ultimately rejected it.[19] That finding was reasonably open to the Authority.
[19] See Minister’s Outline of Submissions filed on 15 September 2022 at paragraph [27].
It is clear from a fair reading of the Authority’s reasons that it considered the treatment received by the applicant both during the war and after the war.
At paragraph [22], the Authority accepted that the applicant had been detained and interrogated up to six times during the civil war and that he had also been beaten on at least two occasions prior to the end of the civil war, one of which resulted in a period of hospitalisation. The Authority also accepted that his brother had received similar treatment during the civil war. As stated above, at paragraph [22] the Authority gave:
22.… significant weight to the fact that it was not only he and his brother that were targeted, but these were systemic round-ups, and that other Tamil males in his area were required to report to the base and suffered the same treatment. This suggests to me the applicant and his brother did not have a specific profile.
At paragraph [23], after considering the applicant’s evidence, the Authority concluded that it did not accept that the applicant had been detained, taken to the army base or elsewhere beaten or otherwise seriously harmed outside of his home after the war had ended.
At paragraph [24], the Authority then discussed country information which it said provided evidence that:
24.…many Tamils from former conflict areas were viewed with suspicion of connections to the LTTE by the Sri Lankan authorities, and subjected to monitoring, questioning, harassment and other forms of serious harm and mistreatment, in particular during the war.
At paragraph [25], the Authority then discusses the applicant’s brother’s situation, and in particular, concluded that the fact that his brother had been granted a protection visa in Australia was not determinative of the applicant’s claim. The Authority further noted that the applicant provided no other details about his uncle’s abduction or profile that he may have had, or of his brother’s protection claims, in particular, relating to any imputed or actual LTTE profile, or how that might impact on the applicant’s own claims.
Relevantly, at paragraph [26], the Authority concluded that the harm suffered by the applicant had reduced in severity and frequency since the end of the war. This finding was open to the Authority on the basis of the applicant’s evidence, referred to above, that he had been detained, interrogated and seriously beaten on a number of occasions during the civil war, once so seriously that he required hospitalisation. Whilst the Authority also accepted the applicant’s evidence that he had continued to be harassed, threatened and intimidated after 2009, including being threatened with a gun on one occasion, the applicant was not arrested or detained for more than a couple of hours at any one time, nor was he charged or subjected to rehabilitation.
In those circumstances, it was open to the Authority to conclude, as it did in paragraph [26], that ‘had [the applicant] an actual or imputed LTTE profile, I do not accept that the interest and threat from the authorities would have decreased, or that he would have been able to avoid arrest, long term detention, charge or rehabilitation’. That conclusion was reasonably open on the evidence before the Authority and does not disclose any jurisdictional error as asserted in ground 1.
I therefore find that the Authority did consider the applicant’s claim that the reason why he was threatened with a gun was because of imputed LTTE links. It considered but rejected this claim, and that rejection, for the reasons set out above, was reasonably open to the Authority.
For each of these reasons ground 1 is not made out.
Ground 2
By ground 2, the applicant assets that:
2.The IAA did not evaluate the cumulative weight of the claims which supported the finding that the applicant was harmed in the past because he was imputed to have involvement with the LTTE:
(i) uncle abducted never to be seen again;
(ii) brother beaten and recognised as refugee in Australia;
(iii)applicant beaten during the war and then after the war having a gun against his head while the army said they would shoot him.[20]
[20] Amended Initiating Application filed on 2 September 2022.
A fair reading of the Authority’s reasons demonstrates that this ground is also not made out.
Firstly, the Authority accepted that the applicant’s uncle was abducted and never seen again. However, as stated above, at paragraph [25], the Authority notes that the applicant provided no other evidence about his uncle’s abduction or any profile the uncle may have had.
Similarly, at paragraph [25], the Authority specifically addresses the concerns raised by the applicant that the delegate had ‘glossed over his profile from his brother’. It then goes on to consider the applicant’s claims regarding his brother, but concluded on the evidence before it that:
25.… no one in his family had links to the LTTE, and … their experiences, including the uncle’s abduction, were as innocent civilians who resided in a Tamil area near an army base in a conflict zone. I consider that finding is supported by what happened to him between the end of the war in 2009 and 2012 when he left Sri Lanka.
The Authority considered each of these claims and was not satisfied that they gave rise to grounds for a protection visa.
Furthermore, to the extent that it is suggested that the error was a failure to consider these matters cumulatively, that argument is also not made out.
A fair reading of the Authority’s reasons clearly disclose that the Authority had regard to the applicant’s claims about his family as a whole impacting whether he was viewed as having an adverse profile. In addition to paragraph [25] referred to earlier, the Authority referred to the applicant’s claims that the SLA thought that he and his brother were in the LTTE at paragraphs [5], [12], [13] and [17] of its decision record. The Authority also refers to the applicant’s claims about his uncle’s disappearance at paragraphs [5] and [11].
Against this background, a fair reading of the Authority’s reasons disclose that in considering the applicant’s claims for protection, the Authority had regard to the claims about his brother and his uncle. So much is evident from the Authority’s statements at paragraph [22].
At paragraph [25], the Authority further says:
25.… I am not satisfied and do not accept that … he had an adverse profile or was imputed to have a profile connected to the LTTE through his brother, uncle or any family member.
Similarly, at paragraph [26], the Authority said:
26.… While I do not discount the harm the applicant and his family experienced in the past, the fact that he faced no serious period of detention, displacement, rehabilitation or other physical harm in the post-war period strongly indicates to me that he had no adverse profile, whether directly or through his family members.
When the reasons are read in their entirety and fairly, ground 2 is not made out. The Authority did consider the applicant’s claims cumulatively. This ground invites the court to engage in impermissible merits review.
Ground 3
By ground 3, the applicant claims that:
3.The IAA’s decision is legally unreasonable because the IAA’s reasons lack a necessary step in that the IAA did not make a finding as to why the SLA had done what they did to the applicant in the past.[21]
[21] Amended Initiating Application filed on 2 September 2022.
It was submitted for the applicant that he claimed that just before he had fled Sri Lanka, the SLA had threatened to shoot him and held a rifle to his head because they thought he and his brother were in the LTTE.[22] It is submitted that the Authority did not address this claim. Relevantly, it was submitted that the Authority failed to consider whether the violence to which the applicant was subjected to prior to his departure from Sri Lanka as a young male Tamil from the north was because he was imputed to have LTTE association.[23] The applicant submits that in failing to do so, the Authority failed to consider his future risk of harm as someone imputed to have LTTE association.
[22] Applicant’s Outline of Submissions filed on 2 September 2022 at paragraph [24] (emphasis in original).
[23] Applicant’s Outline of Submissions filed on 2 September 2022 at paragraph [24] (emphasis in original).
In particular, the applicant submitted that the Tribunal’s conclusion that the applicant (and his brother and uncle) did not have actual links to the LTTE, and therefore did not have an adverse profile, led to an error as the Authority failed to consider the applicant’s claim that he was at risk because of a perceived, rather than an actual, LTTE profile.[24]
[24] Applicant’s Outline of Submissions filed on 2 September 2022 at paragraph [25].
In support of this submission, the applicant relies upon the Federal Court decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 (‘CRS20’), where her Honour Jagot J found that the Authority’s non-acceptance of the claim that an applicant was stateless was legally unreasonable where the Authority’s reasoning process did not logically permit the finding because of an absence of a necessary intermediate finding. In particular, the applicant relies on her Honour’s reasoning at paragraphs [72] and [74] of that decision, which I will discuss shortly.[25]
[25] Applicant’s Outline of Submissions filed on 2 September 2022 at paragraphs [26] and [27].
CRS20 involved an appeal by the Minister from a decision of a judge of this court. In that case, CRS20 was born in Iraq and claimed to be a stateless Faili Kurd. He had arrived in Australia as an unauthorised maritime arrival in 2012 and applied for a protection visa in 2016. That application was subsequently refused by a delegate of the Minister and the delegate’s decision was then affirmed by the Authority. This decision of the Authority which was the subject of a review application to this court, and was ultimately reversed on appeal to the Federal Court of Australia.
CRS20’s application was then the subject of further consideration by a differently constituted IAA. It was this second IAA decision that was the subject of review in CRS20.
Relevantly, one of the issues before the Federal Court on appeal was whether the Authority’s conclusion that CRS20 was not stateless was legally unreasonable. At [64], Jagot J said:
64.… I consider that an integral part of the IAA’s reasons was the finding … that at some point before he left Iran, the first respondent became an Iranian citizen. This is the critical finding because if the first respondent did not become an Iranian citizen before he left Iran, the only logically available conclusion was that the first respondent was stateless. All of the other considerations, undoubtedly generally relevant, cannot alter the fact that in order for the IAA properly and lawfully to be able to assess the first respondent’s application on the basis he was not stateless required the finding that he had become an Iranian citizen in order not to be legally unreasonable.
At [66] to [67], Jagot J went on to further explain:
66.In these circumstances, in order to find that the first respondent had become an Iranian citizen at some time before he left Iran, it was logically necessary for the IAA to make some intermediate findings capable of rationally leading to the conclusion that his accepted status as a stateless Faili Kurd and registered refugee in Iran (that is, a non-citizen of Iran) had changed to make him a citizen of Iran by one of the available methods. Instead, the IAA said at [52] that it could not ‘with any certainty, determine which of the four possible pathways to Iranian citizenship (CRS20) may have taken’ …
67.It is one thing to conclude that the first respondent had not proved he was stateless or that his denial of Iranian citizenship was not credible. It is another to conclude that the first respondent is in fact an Iranian citizen with the consequence that his claims that if he is returned to Iran he fears harm as a stateless, unregistered Faili Kurd refugee were unfounded. The IAA could not rationally reach a finding that the first respondent was in fact an Iranian citizen without making rational intermediate findings that the first respondent: (a) had Iranian paternal ancestry, or (b) had become naturalised. …
It was against this context that Jagot J made her observations and findings upon which the applicant relies at [72] and [74], namely that:
72.In the present case, and on the IAA’s process of reasoning, the relevant event was that the first respondent had changed status from a stateless Faili Kurd to an Iranian citizen. As noted, given that the IAA could not find that this change in status had occurred by any one of the four available pathways ‘with any certainty’ it logically could not find that the first respondent was an Iranian citizen with any greater degree of certainty (yet it did so on a legally unreasonable basis). …
…
74. … The finding in the present case that the first respondent was an Iranian citizen had no logical or rational foundation. As a result, the IAA could not proceed to determine the first respondent’s claims on the basis that he was an Iranian citizen.
The applicant relies upon this case as an example of a recent case in which illogical or irrational findings led to a finding of jurisdictional error.
In response, it was submitted for the Minister that, other than as a statement of principle that where a decision-maker determines a matter illogically or unreasonably, that can give rise to a jurisdictional error, CRS20 has no application to the case presently before the court.[26] There is, respectfully, force in this submission. In circumstances where the determination of legal unreasonableness is a fact specific determination, there is limited benefit in having regard to other cases.
[26] Court transcript at page 18.
In the matter presently before me, the Authority did consider whether the applicant was suspected of an LTTE profile, either suspected, perceived, imputed or actual. The applicant’s own evidence was that neither he nor any member of his family had an actual link to the LTTE. The Authority considered whether he had an imputed, perceived or suspected link to the LTTE and ultimately rejected the claim that he had an imputed profile.[27]
[27] See Authority decision record dated 8 November 2017 at paragraphs [25] to [27].
Unlike the case in CRS20, the Authority in this case did not fail to consider an intermediate proposition or claim. Its findings on the risk of harm to the applicant if he were to return to Sri Lanka based on any LTTE links, actual or imputed, were reasonably open to it. In particular, it is also relevant that in coming to this view, the Authority had regard not only to the treatment that the applicant did receive, but also treatment that he was not subjected to, namely that he did not suffer arrest, detention for long periods of time, charges or rehabilitation. For each of these reasons, the Authority’s decision was not legally unreasonable.
Again, this ground invites the court to engage in impermissible merits review and for these reasons, is not made out.
Ground 4
As stated, leave was granted at the hearing before me for the applicant to rely upon a fourth ground, which is put in the following terms:
The IAA’s decision is affected by irrationality or legal unreasonableness in that having accepted the applicant’s claims, which included that shortly before he fled Sri Lanka, the authorities beat him, put a gun to his head and told him they would shoot him (see page 21 and 22 of the transcript) it was not open to the IAA to find that the treatment he experienced reduced in severity following the war or that the interest and threat from the authorities decreased following the war.
It was submitted for the applicant that having accepted that shortly prior to leaving Sri Lanka, the applicant was beaten and had a gun held to his head and told that he would shot, it was then not open to the Authority to find that the treatment that the applicant had suffered had reduced in severity following the war or that the risk he faced had decreased following the war.
In particular, it was submitted that this finding was not open on the basis of the very serious testimony given by the applicant at the end of the hearing before the Authority.[28] In support of this claim, the applicant relies upon the transcript of the hearing before the Authority. It was submitted that the serious allegations made by the applicant about having a gun held to his head and a threat made that he would be shot, in circumstances where that occurred shortly before he left Sri Lanka, meant that no reasonable person could make a finding that there was a decrease in the threat to the applicant after the war. It is submitted that the evidence given by the applicant, which was accepted by the Authority, ‘amounted to an escalation of his mistreatment after the war’.[29] Having accepted that evidence, it was submitted for the applicant that ‘the IAA could not reasonably or rationally [have found] that there was a reduction in severity of treatment following the war’.[30]
[28] Court transcript at page 10.
[29] Court transcript at page 11.
[30] Court transcript at page 11.
The applicant also relies upon CRS20 in support of this ground. For the reasons set out above, CRS20 is similarly of limited assistance to the applicant in relation to this ground.
As set out above, the Authority accepted that the applicant had been subjected to ongoing harassment after the war had concluded. It accepted that this included being held at gunpoint and being threatened. The Authority acknowledged the seriousness of the conduct to which the applicant had been subjected and the trauma that followed. However, the Authority did not accept that this treatment was because of any actual or perceived LTTE link. Moreover, when regard was had to the treatment which the applicant had suffered during the war, it was open to the Authority to conclude, as it did, that there had been a reduction in the severity of the treatment to which the applicant had been subjected.
In determining a claim of irrationality or unreasonableness, the issue is not whether a different decision maker might come to a different conclusion, but rather, whether the decision reached by the decision maker was so irrational or so unreasonable that no reasonable decision maker would have come to that view.
As indicated above, in this case, the Authority concluded that the applicant had been detained and mistreated on repeated occasions during the war, including on one occasion so severely that he required hospitalisation. The Authority further considered the treatment which the applicant received after the war and found that he was not detained for lengthy periods after the war, nor that he was charged, arrested or subjected to rehabilitation.
In this context, a finding by the Authority that the applicant did continue to be harassed after the war ended, including on one occasion being threatened with a gun, still left open the possibility of the finding made that there had been a reduction in the severity of the treatment the applicant received after the war concluded. This finding involved a comparative assessment of the treatment he received during the war and that he received after the war. I accept the submission made for the applicant that a threat at gunpoint is a significant and disturbing incident. However, the Authority’s finding did not conclude otherwise. It simply concluded that the treatment the applicant received after the war was less severe than that he received during the war, a finding which was reasonably open on the evidence.
Ground 4 also invites impermissible merits review and does not disclose any jurisdictional error.
Conclusion
As none of the applicant’s grounds of review have been made out, I order that the applicant’s application for judicial review be dismissed with costs to be fixed if not agreed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 2 February 2023
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