FJR17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 503
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FJR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 503
File number: MLG 2682 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 5 June 2024 Catchwords: MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority affirming a decision to refuse to grant a protection visa to the applicant – whether the Authority was required to consider the possibility that a finding of fact might not have been correct – whether the Authority failed to consider an integer of the applicant’s claim which clearly emerged from the materials – whether the Authority made a finding that was illogical or irrational – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 473CA, 476, 477 Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 8 February 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Rasan T Selliah & Associates Counsel for the First Respondent: Ms K Chan Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2682 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FJR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on an amended application which contains three grounds asserting that the Authority made a jurisdictional error by:
(a)failing to consider whether a finding of fact might have been wrong;
(b)failing to consider an integer of one of the applicant’s claims; and
(c)making a finding that was legally unreasonable.
For the reasons explained below, the applicant has not established that the Authority decision is affected by jurisdictional error and the application for judicial review is therefore dismissed.
BACKGROUND
The applicant entered in Australia in November 2012 and is an unauthorised maritime arrival.
On 17 May 2016 the applicant applied for a protection visa. His claims for protection were set out in a statement provided with his application and the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection on 15 November 2017. In the weeks following the interview, the applicant, by his representative, provided written submissions and country information to the Department.
On 8 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 4 April 2017 the applicant’s representative provided submissions and country information to the Authority.
On 30 November 2017 the Authority affirmed the delegate’s decision.
SUMMARY OF THE AUTHORITY DECISION
The Authority accepted that the applicant is a Tamil Hindu male from Batticaloa, Eastern Province, Sri Lanka.
In considering the applicant’s claim to fear harm based on familial links to the Liberation Tigers of Tamil Eelam (LTTE), the Authority considered it plausible that the applicant’s paternal uncle was a combatant who was killed during a ceasefire in 2004 at a time when the Karuna Group split from the LTTE, and that his maternal uncle was implicated in a bombing in 1997 and now lives under some monitoring by the Sri Lankan Army (SLA) but is considered to have a low risk profile. The Authority also considered it plausible that the applicant’s father and family provided low level material support to the LTTE, such as bags of rice and food. However, the Authority found that the applicant’s family profile and links to the LTTE were ‘low level and historic’ and that the applicant did not have an adverse profile through his family’s past links and support for the LTTE. In making this finding the Authority took into account that the applicant was able to obtain a passport and leave Sri Lanka lawfully in 2006, which he would not have been able to do if he had an adverse profile.
The Authority accepted that the applicant provided administrative support to the LTTE but found that he was not a political or personal supporter of the LTTE and his role was low level, of short duration and ended before the hostilities started. The Authority found that the applicant did not face a real chance of serious harm by reason of any actual or imputed political opinion or profile.
The applicant left Sri Lanka in 2006 and returned in 2012. He made a number of claims based on events that allegedly happened after his return to Sri Lanka.
The Authority accepted that the applicant was detained, threatened, stripped and interrogated by the Criminal Investigation Department (CID) at the airport upon his return to Sri Lanka in 2012. The Authority accepted that the applicant was able to expedite his release through the payment of a bribe, but considered that the applicant’s release indicated that the CID did not consider the applicant to have an adverse LTTE or separatist profile, or that he had provided funding to the LTTE. The Authority also considered that the applicant’s release indicated that the CID did not have any real evidence that he participated in a Heroes’ Day event outside of Sri Lanka.
The Authority also accepted that the applicant was required to attend the Tamil Makkal Viduthalai Pulikal (TMVP) office shortly after his return to Sri Lanka. While the Authority accepted that the TMVP had knowledge of the applicant’s personal and family connections with the LTTE, it was not satisfied that the TMVP targeted the applicant for this reason.
The Authority considered the applicant’s subsequent detention at a police check to be a matter of chance, with the main factors causing him to come under police scrutiny being the fact that he did not have a National Identity Card (NIC) (having lost it overseas) and instead having a passport that indicated a lengthy stay overseas. The Authority accepted that the applicant was detained and questioned by the CID following his initial arrest by the Sri Lankan police but found that the applicant had exaggerated the depth and extent of the claimed detention and questioning by police and was not subject to serious beatings. The Authority considered that the injuries the applicant claimed to sustain from the treatment he claimed to have experienced from the CID were at odds with his claims that he joined his family to support the TNA the next day and then walked in the victory parade.
The Authority found that if the applicant was seriously considered by the CID to have been associated with the LTTE as a combatant or cadre, or to have funded the LTTE while living overseas, he could not have avoided charge and jail. Instead, the Authority found that the applicant was detained because of his lack of Sri Lankan identity documentation. The Authority found that the applicant was released by the CID because he had no serious or adverse profile or connections with the LTTE.
Despite some concerns with the applicant’s evidence, the Authority accepted that, upon his return to Sri Lanka, the applicant participated in an election in a low level capacity campaigning for the Tamil National Alliance (TNA). The Authority did not consider that the applicant’s ‘low level, and unremarkable’ support for the TNA would give rise to any adverse profile.
Considering the evidence before it, including country information, the Authority found there was no real chance of the applicant being seriously harmed by the SLA, CID, TMVP or any other Sri Lankan authority, group or person by reason of his ethnicity or as a Tamil male from an area formerly controlled by the LTTE. The Authority also found that the applicant’s profile, considered cumulatively, remained low.
The Authority accepted that the applicant departed Sri Lanka illegally and may be charged under the Immigrants and Emigrants Act. Taking into account country information, the Authority was not satisfied that there was a real chance that the applicant would face serious harm for seeking protection in Australia or on the basis of his illegal departure.
The Authority found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act. Based on its factual findings, the Authority also found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 8 December 2017 and the application was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By an amended application, the applicant advances three grounds. The grounds are reproduced below, with some omissions to mitigate the risk of the applicant being identified through the detail of his claims:
Ground 1
1.The Immigration Assessment Authority, in its decision dated 30 November 2017, accepted at [53]-[55] the applicant was arrested on … September 2012, detained and then released on … September 2012. The IAA found at [55] that the applicant “was ultimately released because the CID assessed him as having no serious or adverse profile or connections to the LTTE”. The language used by the IAA at [53]-[55] suggests the IAA made the finding at [55] on the balance of probabilities and the lAA had a real doubt as to whether its finding was correct. The IAA “should have considered the possibility that its findings of fact might not have been correct”: Minister v Rajalingam (1999) 93 FCR 220. The IAA’s failure to “undertake the required speculation” involved jurisdictional error.
Ground 2
2.The applicant claimed that, upon the applicant being detained at … police station on … September 2012, on … September 2012, following the payment of money by the applicant’s mother, the applicant “was released on condition of signing and helping them with intelligence work”: CB 80.2 The IAA accepted that the applicant was arrested on … September, detained and questioned, and then released on … September: CB 312 [54]-[56]. The IAA also accepted at [55] that the applicant “was told he would be monitored or have reporting obligations”, and the treatment the applicant experienced included “reporting and monitoring”. It follows from the IAA’s findings that the applicant, on return to Sri Lanka, may face a real chance of serious harm because of breach of the reporting conditions. The IAA failed to deal with this integer of the applicant’s claim.
Ground 3
3. The IAA at [61] accepted that the applicant “has a low level actual or imputed political opinion or profile connected to the LTTE”. The IAA at [62] added that “the risk of human rights violations for those under the scrutiny of the Sri Lankan authorities must be seen as credible”. Despite these findings, the IAA at [61] found that the applicant “would not face a real chance of being seriously harmed for reasons of any actual or imputed political opinion or profile, in terms of the LTTE or otherwise”. The IAA does not provide a satisfactory explanation as to how, in circumstances where it accepted that the applicant had an actual or imputed political profile connected to the LTTE and there is a credible risk of human rights violations to people in Sri Lanka including Tamils, it could find at [62] that the applicant would not face a real chance of serious harm on return to Sri Lanka. The IAA’s reasoning process or finding at [61] was legally unreasonable.
The evidence before the Court comprises a court book filed by the Minister on 5 September 2018.
GROUND 1
By ground 1, the applicant asserts that the Authority erred by failing to consider the possibility that its finding as to the reason the applicant was released from detention in Sri Lanka may be wrong. The ground is based on the Full Court’s judgment in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (Rajalingam). In that judgment, Sackville J said at [60], [62] and [67]:
60.It follows from the observations of the High Court in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shang Liang)] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo)] that there are circumstances in which the [Refugee Review Tribunal (RRT)] must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
…
62. In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
…
67. In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
The applicant submitted that the Authority was required to, but did not, consider the possibility that it might have been wrong in relation to its finding that the CID released the applicant the day after he was detained in September 2012 because the CID assessed that the applicant had no serious or adverse profile or connections to the LTTE. The finding is explained at [53]-[55], where the Authority said (footnotes omitted):
53.While I accept the applicant was detained and questioned by the CID following the initial arrest by the Sri Lankan police, for the following reasons I consider he has exaggerated the depth and extent of this detention. The applicant contends that he was detained overnight, interrogated and severely beaten by the CID, who questioned him about his time in Qatar, his collection of donations for the Hindu Temple, and his involvement with the LTTE. The applicant claims they also took his passport. He claims that on … September 2012, his mother and his uncle … secured his release through the payment of a … bribe. The applicant claimed that the treatment he experienced was so severe, that he was badly affected. He claimed that he could not sleep well, his body was in severe pain and he could not walk. However, I find the injuries, both psychological and physical, from the treatment he claims to have experienced at the hands of the CID are at odds with his later claims that he joined with his other relatives to support the TNA the next day, and that he walked in a victory parade for his uncle the day after that. When asked during the visa interview why he would have attended a victory parade given what had happened to him, the applicant varied his evidence to state that he was only their briefly. He claimed he only walked for 100 metres or so, until he saw the CID and he left. I find that explanation unconvincing. Given the photographic evidence, I find that he did participate in the parade, and that leads me to conclude that he exaggerated the treatment and injuries he experienced during his detention by the CID.
54.The documents provided clearly indicate the applicant was arrested on the date he claims. I accept that document, but I am not persuaded that it was obtained through a bribe, and note that it does not indicate the level of interest he claims the Sri Lankan authorities had in him. Given his lack of an NIC, I consider it plausible that the applicant was detained by the police and then referred to the CID for questioning. I accept that during that detention he was again subjected to threats, intimidation, and interrogation about his profile. However, if the applicant was seriously considered by the CID in his home area to have been associated with the LTTE as a combatant or cadre, or to have funded the LTTE while he was in Qatar, or had signed a confession to that effect, I do not accept that he could then have avoided charge, jail, or that a bribe could have been paid to secure his release. The security situation in the east of the country in 2012 remained high during this period, there continued to be reports of abductions, torture and disappearances, and rehabilitation of LTTE members and supporters was ongoing. At that time, forced confessions, torture, indefinite detention under the Prevention of Terrorism Act or Emergency Regulations, and other serious mistreatment were methods used by the CID for the purpose of obtaining information, or confessions from suspected LTTE cadres or supporters, or as part of interrogation processes. I have weighed the applicant’s submissions to the contrary that not all persons suspected of LTTE involvement were detained formally under the PTA or rehabilitated. However, if the applicant had confessed to LTTE involvement, or was seriously considered by the CID to have participated in funding the LTTE or being a combatant, I do not accept that the applicant could have avoided further interrogation and torture, charge or continued detention.
55.In terms of the detention, I find instead the applicant was detained and arrested because of his lack of Sri Lankan identity documentation. I consider he was likely mistreated, intimidated and questioned about his profile and his time in Qatar. However, I am not satisfied that he was subjected to serious beatings, or that the CID considered him to have an adverse profile, whether directly, through his family or due to his time and activities in Qatar. I consider the applicant’s mother and uncle may have had to attend the office/base to secure his release, and I consider it plausible a bribe may have been involved, however I find he was ultimately released because the CID assessed him as having no serious and adverse profile or connections to the LTTE. I accept he was told he would be monitored or have reporting obligations, but I do not consider that was indicative that the CID considered he had any higher or adverse profile. I consider it plausible that his family was visited after his departure, likely by the CID, but find that it was part of routine monitoring. The treatment the applicant and his family experienced, including detention, reporting and monitoring, is entirely consistent with the treatment faced by Tamil males in the north and east of the country during the civil war, and in the years that followed. During these periods, the systematic harassment, interrogation, detention, monitoring and mistreatment of innocent Tamil males in conflict areas in the north and east of the country was endemic.
The applicant submitted that the principle in Rajalingam applies to findings in relation to the state of mind of government officials inferred from their conduct in releasing the applicant. The applicant submitted that the language the Authority used in [53]-[55] of its reasons shows that it made its findings on the balance of probabilities and that the Authority had real doubts as to whether its finding was correct. The Authority therefore should have considered the possibility that its finding may not have been correct.
In his oral submissions, Counsel for the applicant submitted that the Authority cannot know with certainty what the state of mind of the CID officers was at the time they released the applicant. Counsel for the applicant submitted that the relevant finding of the Authority was expressed in the terms, ‘I find he was ultimately released because the CID assessed him as having no serious and adverse profile or connections to the LTTE’ and this shows that it was made on the balance of probabilities. Counsel for the applicant contrasted the finding made by the Authority with other findings the Authority might have made in stronger terms, such as that it was implausible that the applicant could be released if the CID was concerned about his profile.
The Minister accepted that where the Authority is uncertain as to whether an alleged event occurred, or finds that although the probabilities and possibilities were against the event occurring, it still might have occurred, it may be necessary for the Authority to take into account the possibility that an event took place in assessing whether an applicant has a well-founded fear of persecution. However, the Minister submitted that reasonable speculation as to whether the applicant had a well-founded fear of persecution did not require the Authority to pursue a possibility inconsistent with its findings. The Minister submitted that in the present case it is plain from its reasons that the Authority did not accept that ‘the applicant was seriously considered by the CID in his home area to have been associated with the LTTE as a combatant or cadre or to have funded the LTTE while he lived in Qatar, or to have signed a confession to that effect’. The Minister submitted that the Authority had no real doubt about its findings and therefore was not required to assess the applicant’s claims on the possibility that, in contrast to its finding, the Sri Lankan authorities may have considered the applicant to have a serious and adverse profile or connections to the LTTE.
In oral submissions, Counsel for the Minister referred to the reasoning in Rajalingam in some detail to support her submission that, based on the way those principles are applied, there is no basis for the ground to succeed in this case. Counsel for the Minister submitted that the determinative question is whether, having regard to the language used by the Authority at [53]-[55] of its reasons, it can be said that the Authority had any real doubt about whether any of its findings were correct. Counsel for the Minister referred to the language used in making each of the findings and submitted that the findings were made by the Authority after detailed consideration and weighing of the facts and evidence, and there is nothing in the Authority’s reasons to support the proposition that it had any real doubt about its findings and its rejection of critical aspects of the applicant’s claims.
I accept the Minister’s submissions in relation to this ground.
The Authority was only required to consider the possibility that it may be wrong in its findings if it had ‘real doubts’ about its findings. Whether the Authority had ‘real doubts’ is to be determined by reference to the reasons given by the Authority.
When one considers the words used by the Authority to express its findings, it is apparent that the Authority did not have any real doubts about its findings. There was therefore no need for the Authority to consider the possibility that it was wrong in its findings.
The only wording expressly identified by Counsel for the applicant as purportedly showing that the Authority’s findings were made on the balance of probabilities is the expression ‘I find he was ultimately released because the CID assessed him as having no serious and adverse profile or connections to the LTTE’. This is a clear finding in unequivocal language. Counsel for the applicant contrasted the words used in reaching this finding with words that might have been used to express a finding in stronger language, such as making a finding that something was ‘implausible’. However, the Authority did not need to make a finding in terms of ‘implausibility’ for the Court to be satisfied that the Authority did not have any real doubts about its findings.
Other findings used throughout [53]-[55] are also expressed by the Authority in a way that demonstrates that the Authority had no real doubts about its findings that were adverse to the applicant. For example, the Authority ‘consider[ed] [the applicant] has exaggerated the depth and extent of this detention’, ‘[found] the injuries … from the treatment he claims to have experienced … [to be] at odds with his later claims that he joined his relatives to support the TNA the next day’ and found that the applicant participated in the victory parade. The Authority ‘accept[ed]’ that the applicant was subjected to threats, intimidation and interrogation, but did ‘not accept’ that the applicant could have avoided charge or jail or could have been released following a bribe if he had seriously been considered to be associated with the LTTE as a combatant or cadre or to have funded the LTTE. The Authority found that the applicant was arrested and detained because of his lack of identity documents, and while it considered he was ‘likely mistreated’, it was ‘not satisfied’ that he was subjected to serious beatings. The Authority ‘accept[ed]’ that the applicant was told he would have reporting and monitoring obligations but did ‘not consider’ that this was indicative that the CID considered him to have any higher or adverse profile. Again, the language used by the Authority was clear and unequivocal.
There were other findings made by the Authority that used less unequivocal language, such as the Authority’s consideration that it was ‘plausible’ that the applicant was detained by the police and referred to the CID for questioning, and that his mother or uncle ‘may’ have had to attend the base to secure his release, that it was ‘plausible’ that a bribe was involved and that it was ‘plausible’ that the CID may have visited the applicant’s family after his departure. These findings were all in favour of the applicant and indicated acceptance, or a willingness to accept, his claims. There is no need for the Authority to consider the possibility that it may be wrong in relation to findings that are favourable to the applicant. These findings indicating partial acceptance of the applicant’s claims do not undermine the clear and unequivocal findings made by the Authority in rejecting other aspects of the applicant’s claims.
Ground 1 is not established as there is no real doubt in the Authority’s adverse findings and therefore it did not need to consider the possibility that it may be wrong.
GROUND 2
By ground 2, the applicant asserts that the Authority failed to consider a claim or an integer of the applicant’s claim which emerged clearly on the materials before the Authority. The asserted claim is to the effect that the applicant may face a real chance of serious harm on account of breaching the reporting conditions to which he was subject upon his release from detention in September 2012.
The applicant claimed in the statement that accompanied his protection visa application that, when released by the CID in September 2012, he ‘was released on condition of signing and helping them with intelligence work’.
The findings of the Authority relevant to the consideration of this ground are in [53]-[56] of the Authority’s reasons and include that:
(a)the applicant was arrested in September 2012, detained and questioned, and then released the following day;
(b)the applicant ‘was told that he would be monitored or have reporting obligations’ and that the treatment he experienced included ‘reporting and monitoring’.
The applicant submitted to the Court that he left Sri Lanka in November 2012, thereby breaching his reporting conditions and a claim emerged on the materials before the Authority that the applicant may face a real chance of serious harm because he breached his reporting conditions. The applicant submitted that the Authority made a jurisdictional error by failing to consider this claim.
The Minister submitted that the Authority made dispositive findings addressing the applicant’s claims as they were advanced by him. The Minister submitted that the claim or integer relating to reporting obligations to the CID was not one that arose squarely on the materials before the Authority, either from its own findings or from claims or facts accepted or advanced by or on behalf of the applicant. The Minister submitted that the Authority expressly found that the applicant being told that he would be monitored or have reporting obligations was not ‘indicative that the CID considered he had any higher or adverse profile’. Further, the Minister submitted that the claim or issue now being raised is extremely speculative and does not meet the fundamental threshold that it must ‘clearly emerge’ from the materials, and it was unnecessary for the Authority to make reference to that specific aspect of the issue given the Authority’s consideration of it was subsumed in findings of greater generality.
In her oral submissions, Counsel for the Minister submitted that there were two reasons why the ground must fail. The first was that the claim was not the subject of a substantial, clearly articulated argument based on established facts and it did not clearly emerge from the materials before the Authority. The second was that, insofar as it might be said that the Authority, by its own findings, raised this as a new claim or issue, the Authority considered and dealt with the matter, and did not need to specifically refer to it as a separate integer as its findings on it were subsumed in findings of greater generality. In this regard, Counsel for the Minister submitted that the asserted claim the subject of this ground was not distinct or different from the applicant’s claims to fear harm from the CID or the Sri Lankan police generally. Counsel for the Minister referred to the Authority’s finding at [55] that it accepted the applicant would be monitored or have reporting obligations but did not consider this was indicative that the CID considered he had any higher or adverse profile, and submitted that there can be no clearer evidence that, insofar as any new claim arose distinct from his fear of harm arising from the incident with the police and the CID, the Authority considered and disposed of it in the same sentence.
In considering this ground, it is convenient to have regard to the principles summarised by the Full Court in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18]:
It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov [v Minister for Immigration and Multicultural Affairs [2003] HCA 26] that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
The applicant accepted that he did not expressly claim that he would face a real chance of serious harm for breaching his reporting conditions. The question to be determined by the Court is therefore whether this claim clearly emerged from the materials before the Authority. As is evident from the summary of principles in AYY17, such a finding is not to be made lightly.
In the present case, it is relevant that the applicant was represented by a registered migration agent when he made his protection visa application. In addition to a detailed statement of claims, the applicant provided with his protection visa application a seven-page cover letter prepared by his migration agent that read as a submission, and his agent provided post-interview submissions comprising 18 pages. When the matter was before the Authority, the applicant was represented by a solicitor and registered migration agent who provided a five-page submission to the Authority. It is relevant to take into account that the applicant was represented before the delegate and the Authority and still did not raise any claim to fear harm from breaching any reporting conditions.
In his statement, the applicant said ‘I was released on condition of signing and helping them with intelligence work’. No further detail was provided in the statement as to the conditions, the intelligence work he was expected to do, or how long the arrangements were to last. The applicant said nothing in his statement to expressly or implicitly indicate that he feared harm from any failure to report or comply with any conditions of his release. A transcript of the interview with the delegate is not in evidence before the Court, but there is nothing in the delegate’s decision or the Authority decision to indicate that the applicant expressed anything at the protection visa interview that would indicate any fear of harm or other claim arising from any breach of reporting conditions.
While the Authority accepted that the applicant was told that he would be monitored or have reporting obligations, there is no finding as to the nature and extent of the reporting obligations, whether they were enforced, or the consequences of any failure to comply with the reporting obligations. This is unsurprising given that the applicant did not advance any express claim or otherwise provide details about these matters. The ‘established facts’ from which an unarticulated claim may emerge are therefore limited to a finding that the applicant was released by the CID and told that he would be monitored or have reporting obligations, the details of which were unavailable to the Authority, and that he departed Sri Lanka two months after this.
I do not accept that any unarticulated claim that the applicant would face harm on account of having breached reporting conditions clearly emerges from these established facts, taking into account the way in which the applicant’s claims have been articulated over time, the previous opportunities of the applicant and his representatives to give evidence and make submissions about the applicant’s claims and the fact that the applicant was represented at the time his claims were articulated.
Given I do not accept that any unarticulated claim clearly emerged from the materials before the Authority based on established facts, it is unnecessary to consider whether the Authority made any finding that might address the asserted unarticulated claim.
Ground 2 is not established.
GROUND 3
By ground 3, the applicant asserts that the Authority’s decision is legally unreasonable because the Authority found that the applicant did not face a real chance of serious harm on return to Sri Lanka, despite finding that the applicant had a ‘low level actual or imputed political opinion or profile connected to the LTTE’ and that ‘the risk of human rights violations for those under scrutiny of the Sri Lankan authorities must be seen as credible’.
The Authority said at [61] and [62] of its reasons:
61.Given that advice, I am satisfied that whether as a result of his own low level and involuntary administrative support for the LTTE in 2005-2006, his family’s low level material support for the LTTE during the conflict, his uncle’s actual combat role with the LTTE prior to his death in 2004, or his other uncle’s wrongful conviction of a bombing in 1998 and reduced penalty following his initial detention, I consider the applicant has a low level actual or imputed political opinion or profile connected to the LTTE. I find he would not be on any watch list, or be seriously considered to have a role in relation to post-conflict Tamil Separatism. I find that he would not face a real chance of being seriously harmed for reasons of any actual or imputed political opinion or profile, in terms of the LTTE or otherwise.
62.I accept on the basis of the applicant’s submissions for those with links to the LTTE, sometimes even tenuous links, the risk of human rights violations for those under the scrutiny of the Sri Lankan authorities must continue to be seen as credible. However, I am satisfied that the applicant’s profile is low level, historic, unambiguous and unremarkable. I am satisfied that the treatment he experienced in the past is entirely consistent with that faced by low profile Tamil males in the east of Sri Lanka, and not indicative that the authorities considered the applicant to possess any higher adverse profile, whether connected to the LTTE or not.
The applicant submitted that the Authority did not provide a satisfactory explanation as to how, in circumstances where it accepted that the applicant had an actual or imputed political profile connected to the LTTE and where there is a credible risk of human rights violations to people in Sri Lanka including Tamils, it could find at [62] that the applicant would not face a real chance of serious harm on return to Sri Lanka. The applicant submitted that the Authority’s finding is legally unreasonable.
In his oral submissions, Counsel for the applicant referred to the High Court’s judgment in Chan v Minister for Immigrationand Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) and, in particular, the observation of McHugh J at 429 that:
… [A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. … an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured, or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.
Counsel for the applicant submitted that it is difficult to understand how the Authority could find at the end of [61] that the applicant would not face a real chance of being seriously harmed, when it also found in [61] and [62] that the applicant has a low level actual or imputed political opinion or profile connected to the LTTE and that for those with links to the LTTE, the risk of human rights violations must continue to be seen as credible.
The Minister submitted that the ground is properly understood as an assertion of illogicality or irrationality and referred to the consideration of Derrington J in EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681 at [45] and Wigney J’s dissenting judgment in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94 at [140] to support his submission that the concept of ‘unreasonableness’ is not the appropriate lens through which to view this ground.
The Minister submitted that the Authority’s finding was not illogical or irrational, and that it was open to the Authority to conclude that the applicant did not face a real chance of serious harm by reason of his ‘low level’ actual or imputed political opinion, on the basis of:
(a)the Authority’s finding that the treatment the applicant faced in the past is ‘entirely consistent with that faced by low level Tamil males in the east of Sri Lanka, and not indicative that the authorities considered the applicant to possess any higher adverse profile, whether connected to the LTTE or not’, with this finding being reinforced by the applicant’s ability to depart Sri Lanka freely in 2006;
(b)the assessment of the Department of Foreign Affairs and Trade, referred to by the Authority in its reasons, that ‘the situation for Tamils in Sri Lanka, including Tamil males from the east and north of the country, has improved considerably’, that ‘under the new Sirisena government, the monitoring and harassment of Tamils in day-to-day life had significantly decreased’ and that ‘those Tamil civilian members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by the Sri Lankan authorities but were at low risk of being detained or persecuted’;
(c)the Authority’s acceptance that the applicant’s ‘uncle who was wrongly charged with the van bombing… continues to live and own his own farm, albeit with some monitoring and movement restrictions’ and that the uncle’s profile ‘appears to have eased’ and ‘that would be the case for the applicant as well’; and
(d)the assessment of the UK Home Office, referred to by the Authority in its reasons, that even a person with ‘past membership or connection to the LTTE would not warrant international protection unless they have, or are perceived to have, a significant role in relation to post-conflict Tamil separatism or appear on a stop list at the airport’.
In her oral submissions, Counsel for the Minister referred to the reference to Chan by Counsel for the applicant and submitted that the ground does not allege any misapplication or misconstruction of the real chance test and there is nothing in the Authority’s reasons to indicate any misunderstanding or misapplication of the real chance test.
I accept the Minister’s submission that this ground is best viewed as an illogicality or irrationality ground.
At first glance, there may appear to be some inconsistency between the Authority’s findings, on the one hand, that the applicant ‘has a low level actual or imputed political opinion or profile connected with the LTTE’ and its acceptance that there is a credible risk of human rights violations for those with links, including sometimes tenuous links to the LTTE under the scrutiny of the Sri Lankan authorities, and its finding, on the other hand, that the applicant did not face a real chance of serious harm due to any LTTE profile. However, when those findings are properly construed in the context of the Authority’s reasons as a whole, I am satisfied that the Authority decision is not illogical or irrational.
It is relevant to consider the whole of the Authority’s findings, and all of the words used by the Authority in expressing its findings in considering this ground. In this regard, the opening sentence of [62] of the Authority’s reasons reads, ‘I accept on the basis of the applicant’s submissions for those with links to the LTTE, sometimes even tenuous links, the risk of human rights violations for those under the scrutiny of the Sri Lankan authorities must continue to be seen as credible’ (emphasis added). There was little focus on the emphasised words by the parties in their submissions, but in my view, those words are highly relevant to the proper interpretation of the Authority’s reasons. The Authority gave several reasons in [61] and [62] for concluding that the applicant would not have an adverse profile with the Sri Lankan authorities, notwithstanding that he may have a low level actual or imputed political opinion connected to the LTTE, and it is implicit in the Authority’s findings that the Authority did not consider that the applicant would be ‘under the scrutiny of the Sri Lankan authorities’. The Authority found that the applicant would not be on any watchlist, would not be considered to have any role in post-conflict Tamil Separatism, had a profile that was ‘low level, historic, unambiguous and unremarkable’ and that the treatment he faced in the past was consistent with that faced by low profile Tamil males in Sri Lanka and not indicative that the authorities considered him to possess any higher adverse profile.
In the light of these findings, and on the basis of the evidence before it, it was open to the Authority to find that the applicant would not face a real chance of serious harm on account of his actual or imputed political profile. The finding also needs to be viewed taking into account the evidence in relation to the situation for Tamils and those with former LTTE links and the Authority’s findings based on this evidence, including those findings referred to in the Minister’s submissions and summarised at [57] above. It cannot be said that there is no logical connection between the evidence before the Authority and the findings made by the Authority, or that only one conclusion was open on the evidence and the Authority did not reach that conclusion: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135]. There is nothing illogical or irrational in the Authority’s finding.
Insofar as Counsel for the applicant raises an argument based on the High Court’s judgment in Chan, I accept the Minister’s submissions that there is nothing on the face of the Authority’s reasons to suggest that it misunderstood or misapplied the real chance test. The test from that case is often expressed as being that a ‘real chance’ is one that is ‘not remote’. It does not require a finding that there be no chance of harm at all. On a fair view of the Authority’s reasons, there is nothing to indicate that the Authority misunderstood or misapplied the ‘real chance’ test or otherwise applied too high a standard in assessing the chance of harm to the applicant arising from his actual or imputed political opinion connected with the LTTE.
Ground 3 is not established.
CONCLUSION
The applicant has not established that the Authority made any jurisdictional error in reaching its decision in this matter. It follows that the application for judicial review must be dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 5 June 2024
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