FLD17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 569
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 569
File number(s): SYG 3854 of 2017 Judgment of: JUDGE D HUMPHREYS Date of judgment: 30 June 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Protection visa – whether Authority misapplied s 473DD – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 5H, 5J 473DD Cases cited: BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Ethnic Affairs v Guo 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingham) (1999) 93 FCR 220
MZZJO v Minister for Immigration (2014) FCR 436
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] 144 FCR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvaduri v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 15 June 2023 Date of hearing: 15 June 2023 Place: Parramatta Counsel for the Applicant: Mr Zipser Solicitor for the Applicant: Ryburn Solicitors Counsel for the Respondents: Mr Cleary Solicitor for the Respondents: Mills Oakley
Table of Corrections 25 July 2023 Insert the word ‘not’ in paragraph [57]. ORDERS
SYG 3854 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLD17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
30 June 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.Costs reserved.
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 D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Sri Lanka. He arrived in Australia in October 2012 as an unauthorised maritime arrival. On 8 December 2015, the Minister for Immigration lifted the s 46A bar and the applicant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
In February 2016, the applicant applied for a SHEV. In February 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his SHEV.
The applicant’s Protection visa was referred to the Immigration Assessment Authority (“the Authority”) in February 2017. In November 2017, the Authority refused to grant the applicant his SHEV.
The applicant now seeks judicial review of the Authority’s decision in this Court. For the reasons set out below, the application is dismissed.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
Paragraph 1 of the Authority’s decision record provides the procedural background to the applicant’s SHEV.
Paragraphs 2 to 8 cover the information that was before the Authority. The Authority considered material provided to it by the Secretary. The Authority also received submissions from the applicant on 24 February 2017. The applicant gave new oral evidence to the Authority concerning his wife being beaten and about the Criminal Intelligence Division (“CID”) visiting and assaulting his mother and wife, however the Authority was not satisfied that this information could not have been given to the delegate or that it was credible personal information. The Authority also found that there were no exceptional circumstances to justify considering the Committee Against Torture’s observations from November 2016 which was not before the delegate. Country information from 24 January 2017 was found to fall within the exceptions to consideration as there were exceptional circumstances to justify its consideration.
At paragraph 9, the Authority provides a summary of the applicant’s protections as follows:
· The applicant is a Sinhalese Buddhist who resided in in the Central Province of Sri Lanka from birth until 2005 and then in the Eastern province from 2005 until 2012.
· His father was a businessman who was politically involved with the United National Party (“UNP”). His parents’ families are well known UNP supporters in their area.
· On 4 August 1989 his father and uncle were killed by Janatha Vimukthi Perumana (“JVP”) insurgents because the JVP suspected they were informants.
· The applicant witnessed the murders and saw their mutilated and beheaded bodies. His mother said the JVP had been trying unsuccessfully to gain the support of his father’s family. Following the murders his mother continued supporting the family from abroad. His father’s killer was not found but many JVP insurgents were imprisoned and killed and his mother feared the JVP would take revenge on the family for this. His mother asked UNP politicians to protect the applicant and his siblings.
· Badly impacted by the murder of his father and uncle, the applicant developed hatred towards the JVP for this, because of their policies and criminal activities. After completing his studies, he became a UNP member. He was actively involved in politics in his electorate.
· He earned a living with a van his mother purchased for him by working as a driver for public and government officials including UNP politicians, supporters, and activists. He became very famous amongst the local politicians, professionals and businessmen in the area. In his free time he would also lend his van to the UNP to help them carry out their work.
· In 2004, the UNP was defeated by the United People’s Freedom Alliance (“UPFA”) and after securing an alliance with the JVP, Rajapakse become President. Determined to wipe out the Liberation Tigers of Tamil Eelam (“LTTE”), the UPFA started targeting any UNP supporters suspected of negotiating with the LTTE.
· Due to his UNP support, his van was smashed. Around this time he and his friend, another UNP member were organising a UNP meeting when Sunil Amrathunga MP (“SA”) came with his people. SA shot his friend and the applicant ran away. As he was a known UNP member and was a witness to the shooting, SA and his associates feared that he would take action against them. They began threatening him and falsely accusing him and his friend of collaborating and scheming with the LTTE. They also started coming to his house searching for him. He claims the LTTE accusations were made in revenge, because they wanted to destroy him. In addition to his friend, three other people had been killed by SA although someone else was held responsible.
· Around this time the CID and police would often take his white van for their own purposes without his permission. He would have to go collect it from the police station when they were finished. He once collected it with a heavily bloodstained interior and he immediately realised it had been used to abduct and murder LTTE cadres and supporters. He immediately painted the van grey so that the CID would not recognise it. After repainting it he hid his van in a friend’s garage and then sold it.
· He started receiving death threats from unknown people and although some of them spoke Sinhalese, he could tell from the accents that they were members of Tamil armed groups. They suspected him of having LTTE connections and said they were ordered to kill him and get rid of his body. He had to leave his wife and children and go into hiding to avoid the UPFA (including the CID, police and army), JVP and the Tamil armed groups. His UNP friends advised him to live away from his suburb for some time.
· He went to stay in the Eastern Province with a Muslim friend of his who ran a corner shop near the beach. He worked in the shop. His wife and children would come to visit him.
· While in the Eastern Province, he became aware of smuggling operations in the area through his customers at the shop who were involved in the operations. They told him that ruling government politicians were involved. He became an informant for the navy and informed them amongst other things, about the involvement of a local MP. On 24 August 2012 he was beaten by unknown persons, his shop was burned and destroyed and he was threatened with death for providing information to the navy. He reported the matter to the police and told them about the involvement of the MP. The police refused to implicate the MP by recording her name in the statement. They threatened to charge and imprison him if he continued to work against her. They also told him the navy were involved and he would be arrested if he complained about the MP to them.
· He was already fearful of the UPFA and the CID and this incident made him even more fearful so after telling his wife and children, he went to the Western Province and fled Sri Lanka from there.
· When he arrived in Australia his wife told him that CID officers had visited her and questioned her as to whether he had been living in the Eastern province. She told them that he had already gone overseas and the CID officers did not take any further action.
· In early 2014 the CID again visited his wife and interrogated her. They beat her in front of the children and said they knew he had fled from Sri Lanka illegally by boat and that he would be imprisoned upon return. They said they have evidence against him that they would use to arrest him and she should notify them immediately if he returned.
· He believes the CID have access to some of his personal information as a result of the website disclosure in 2014.
At paragraph 11, the Authority outlines the criteria for well-founded fear of persecution as set out in s 5J of the Migration Act 1958 (Cth) (“the Act”).
At paragraph 12, the Authority made findings in relation to the applicant’s identity. The Authority accepted the applicant’s claimed identity and nationality. It accepted that Sri Lanka was the receiving country and that the Central Province was the applicant’s home region for the purpose of the review. The Authority also accepted the applicant’s religion as Sinhalese Buddhist, however noted that no claims of fear were raised in this respect or that any claims arose from the material.
At paragraph 14, the Authority accepted that the applicant’s family were known UNP members and was prepared to accept that his father and uncle were killed by the JVP in 1989. It accepted that the applicant was heavily affected by these events and this led to his hatred for the JVP. The Authority accepted that the applicant did attend some meetings of his local UNP branch, however he did not routinely or was actively engaged in any meetings or political initiatives.
At paragraph 17, the Authority accepted that the applicant became known in his area for his driving role. It did not accept that an attack on his van was due to him being targeted for his UNP membership or that it was a politically targeted attack against the applicant.
In relation to the shooting incident by SA, the Authority had concerns as to its plausibility considering the applicant’s friend’s overall involvement with the UNP as a low-level member. It was not satisfied that SA or his people were searching for the applicant following the shooting.
In relation to claims concerning the LTTE, the Authority was not satisfied that the police perceived the applicant to have an LTTE member supporter, sympathiser or any other pro-LTTE profile. At paragraph 24, the Authority rejects these claims due to their credibility. The Authority accepted that the applicant’s van was used by Sri Lankan authorities for the purpose of committing crimes and that he feared implication in these crimes and repercussions from officers who were no longer able to use the van. Given that no problems arose once the van was painted and sold, the Authority was satisfied that the applicant faced no real chance of harm upon return to Sri Lanka from the use of the van in 2004.
At paragraph 28, the Authority states that it was satisfied that the applicant was a low-level member of the UNP and that his involvement was limited to the period that he lived in the Central Province, and his involvement ceased upon him relocating to the Eastern Province. The Authority was not satisfied that the applicant would become an active member of the UNP upon return, or that he returns to the Central Province his re-engagement would only be at a low level.
Paragraphs 30 to 35 deal with the applicant’s problem when in the Eastern Province. The Authority accepted that the applicant acted as an informant in relation to smuggling operations and that he was beaten and had his shop destroyed in 2012. However, the Authority was not satisfied that the applicant knew who it was that attacked his shop and why, and it did not accept that the applicant attempted to seek police assistance after the event. The Authority was not satisfied that the female MP had threatened he applicant or had ordered the attacks against him and his shop.
The Authority did not accept that the CID’s visit to his wife to ask questions about the applicant being in the Eastern Province were indicative of the authorities or any politicians having an adverse interest in him, considering that he had been living there for around 7 years and had suddenly departed following the destruction of his shop.
The Authority accepted that the applicant’s details may have been disclosed in the website disclosure incident and that the Sri Lankan authorities may have accessed his information. However, the Authority did not consider that the applicant was of any adverse interest before his departure from Sri Lanka, or subsequently, such that the authorities would have harmed or interrogated his wife and threatened to imprison or kill him upon return to Sri Lanka.
At paragraph 35, the Authority accepted that the applicant’s beating and his shop being destroyed may have been connected to his informant activities. Although the Authority acknowledged that the applicant’s wife was asked by the CID whether the applicant had been living in the Eastern province, it was not satisfied that this was an indication that his attackers or anyone involved in the smuggling operations were looking for him. The Authority was not satisfied that anyone had sought the applicant in relation to his informant activities since 2012 or that he would still be interest to those who attacked and destroyed his shop or anyone involved in the smuggling industry.
Paragraphs 36 to 47 deal with claims relation to being a returning failed asylum seeker and illegal departee from Sri Lanka. The Authority accepted that upon return to Sri Lanka the applicant would be screened by authorities during their airport processing procedures and that his personal history would be revealed. However, given the previous findings it was not satisfied that the authorities would uncover anything of concern, including those matters relating to suspected links to the LTTE and events concerning his van.
At paragraph 29, the Authority did not accept that the CID had obtained the applicant’s information relating to his protection application through the website disclosure and that the applicant’s informant activities would be of any concern to authorities upon his return to Sri Lanka.
At paragraph 40, the Authority states that country information does not indicate that failed asylum seekers are imputed as having committed a crime, other than illegally departing. It was not satisfied that there was anything in the applicant’s profile that would cause undue concern for the authorities during airport processing procedures or after his return to his home region.
The Authority accepted that the applicant may be charged under the Immigration and Emigration Act 1988 (“I&E”) for illegally departing Sri Lanka. However, the country information indicates that the process by which those charged for this offence are subject to do not rise to the level of a threat to life or liberty or to significant physical harassment or ill treatment such that the applicant requires protection. The Authority found that the process leading to charge, conviction and punishment for breaching the relevant sections of the I&E would be the result of a law of general application applied to all Sri Lankans who depart illegally and does not amount to persecution for the purpose of ss 5H(1) and 5J(1) of the Act.
At paragraph 48, the Authority concludes that it does not accept that the applicant faces a real chance of persecution from the UPFA or SLFP, JVP, armed Tamil groups, the current government and security authorities, SA and his associates, the female MP in the Eastern Province and her associates on account of his family background and own membership/support for the UNP, because his van was used to carry out abductions and murders, because he witnessed any shootings and acted as a navy informant on smuggling operations and because he has been branded an LTTE sympathiser, nor his illegal departure and asylum application in Australia or information released in the website disclosure.
At paragraph 60, in relation to the complimentary protection criteria, the Authority did not accept that, taking into account the applicant’s circumstances individually and cumulatively, the applicant would face a real risk of significant harm.
GROUNDS OF JUDICIAL REVIEW
The applicant’s single ground of judicial review is contained within an Amended Initiating Application filed with the Court on 1 June 2023. Leave was granted to rely upon these new grounds. They are as follows:
Ground One
The applicant's principal claim as to why he left Sri Lanka in September 2012 and why he feared returning arose from events not long before he left Sri Lanka in which he provided information to a naval officer in the Sri Lankan navy about a drug smuggling ring operating in Nilaweli of which he became aware, and on 24 August 2012 he was attacked by a group of Sinhalese men and the building in which he operated his business was burnt down. The IAA, although it accepted these events occurred, found at [34] that the applicant was not of adverse interest to the authorities when he departed Sri Lanka and at [35] that the applicant does not "face a real chance of harm in relation to these matters upon his return". For the following reasons, the IAA fell into jurisdictional error in making these findings:
a. The applicant believed that a member of parliament Ariyawathi Galappaththi supported or protected the drug smugglers and was involved in the attack on the applicant on 24 August 2012. The IAA at [32] did not reject the applicant's claim that the MP was protecting the drug smugglers. The IAA otherwise erred at [30]-[35] in dealing with the applicant's claim concerning this MP.
b. The applicant claimed that, not long after he left Sri Lanka, “The CID officers had visited [my wife] and questioned my wife as to whether I had been living in Nilaweli…” The IAA at (33] accepted this claim. However, the IAA found, on the balance of probabilities that "I do not accept this visit is indicative of the authorities or any politician having an adverse interest in the applicant". The IAA's findings did not rule out a real chance that the authorities had an adverse interest in the applicant at the time. The IAA did not consider this real chance when it made its ultimate finding at (35] that the applicant does not "face a real chance of harm in relation to these matters upon return". This is a jurisdictional error.
c. The applicant claimed that, in addition to the visit by the CID officers to his wife not long after he left Sri Lanka, in early 2014 the CID officers again visited the applicant's wife and interrogated and beat her. The IAA reasoned that it was not satisfied that the applicant was of any adverse interest to the authorities when he departed Sri Lanka and therefore this event did not occur in early 2014. This reasoning process was illogical in a manner which involves jurisdictional error. It was logical for the IAA to first find whether the claimed visit in early 2014 occurred, and then find whether the applicant was of adverse interest to the authorities when he departed Sri Lanka in September 2012. To address the questions of fact in the reverse order is illogical and involved jurisdictional error.
d. The applicant, by reporting the drug smuggling operation to a naval officer in Sri Lanka in 2012 exposed himself to a real risk of harm from those whose criminal activities he disrupted. A question is whether the applicant would engage in similar conduct if required to return to Sri Lanka and, if so, whether the applicant would face a real chance of harm as a result. The IAA did not deal with this question. This was a jurisdictional error.
Ground Two
The IAA at [28] accepted that the applicant “may re-engage with” the UNP if required to return to Sri Lanka. The IAA found at [29] that, based on country information, “there was considerable animosity between the UNP and SLFP [which was a ruling party] in the past”, although there was presently a coalition between the UNP and SLFP. Looking into the reasonable foreseeable future, if the applicant was required to return to Sri Lanka, a question is whether there would again be “considerable animosity between UNP and SLFP”. The IAA did not consider this issue. This is a jurisdictional error.
THE APPLICANT’S SUBMISSIONS
Ground 1 is an attack on the factual findings of the Authority, with reference to 4 issues identified in particulars (a) – (d). It was submitted first that the Authority accepted most but not all of the applicant’s claims including at [30] and [31] that he passed information about a smuggling ring to a naval officer on 24 August 2012, and that he was attacked by a group of Singhalese men and the building in which he operated his business, was burnt down.
However at [34] and [35] the Authority found that it was not satisfied that the applicant was of adverse interest to Authorities when he departed Sri Lanka. The Authority found it implausible that they harmed and interrogated the applicant’s wife and threatened to kill/harm the applicant upon his return. The Authority went on to find that it was not satisfied he would still be of interest to those who attacked him and destroyed his shop or to anyone in the smuggling industry.
In relation to these findings, the applicant complains that he believed a Member of Parliament supported or protected the smugglers. The Applicant made a statement to this effect in his visa statement. In his interview he added that “a naval officer told him about the MP”.
However, at [32] the Authority found it “was not satisfied the MP was threatening the applicant or ordered that attack against him”. On the other hand, the Authority effectively found at [32] that it was not known “who was responsible for the attacks on [the applicant] and his shop, nor their motive”. The Authority did not reject the applicant’s claim that the MP protected drug smugglers noting it was not “implausible” that corrupt members of the authorities were involved in smuggling and “accepted had heard rumours to that effect’. Thirdly, the Authority was not satisfied the MP had threatened the applicant as he made no mention of the MP in his entry interview in October 2012: [31].
Reliance was placed on Minister for Immigration and Multicultural Affairs v Rajalingham (Rajalingham) (1999) 93 FCR 220 at [60], [62] and [67], per Sackville J. At [62] the following was said:
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. Where 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 decision, 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 applicants claim to fear of persecution…
Even if the MP was not responsible for the attack of the applicant on 24 August 2012, the authority did not reject the applicants claim that the MP “was protecting these drug smugglers”. If so, the applicant in providing information about the drug smugglers to the Sri Lankan Navy, in the light of the authority’s acceptance at [30] the applicant was “targeted by those in the smuggling operation whose business and anonymity may have been threatened by the applicant’s activities”, would probably become of adverse interest to the MP. Based on these findings, the applicant may face a real chance of harm from the MP if required to return to Sri Lanka. The authority in making its findings at [34] and [35] did not consider the risk of harm to the applicant. This involves jurisdictional error.
Further, the Authority at [30] stated that “there are anomalies in the information the application provided to the Department which lead me to have concerns about the applicant’s claims are being targeted by the female MP”. The Authority explained that at his entry interview, the applicant spoke about the destruction of his shop but made no mention of having any problems with any MP. Reliance was placed on MZZJO v Minister for Immigration (2014) FCR 436 at [56] – [57] where the Court held that ‘some caution should be exercised by decision-makers in relation to admissions by applicants of matters at entry interview’. A reliance on failing to mention details at entry interview, may involve a “misunderstanding of its task on review”. However inconsistencies between the delegate interview and what is said to the Tribunal, may not involve such an error.
Second, it was submitted that the applicant claimed that not long after he left Sri Lanka, CID officers visited his wife. The Authority accepted at [33] “it is not implausible the authorities make contact with his wife”. However, the Authority then found on the balance of probabilities that “I do not accept this visit is indicative of the authorities of any politician having an adverse interest in the applicant”. It was submitted that the Authority was not persuaded that the authorities had an adverse interest in the applicant when they visited his wife, however the Authority’s findings do not rule out a real chance the authorities had an adverse interest in the applicant. The Authority did not consider this real chance when it made its ultimate finding at [35] that the applicant does not face a real chance of harm upon return. This involves jurisdictional error.
Thirdly, the applicant complained of the finding at [34] where the Authority reasoned that it was: “not satisfied that the applicant was of any adverse interest to authorities when he departed Sri Lanka… I consider it implausible that they harmed and interrogated his wife and threatened to imprison and/or kill him upon return when he had not previously been of adverse interest”.
The applicant submitted that the reasoning process was illogical. The Authority accepted that CID officers may have visited the applicant’s wife shortly after he left Sri Lanka. Whether or not CID officers visited the applicant’s wife a second time in early 2014 would affect an assessment of the probability of whether the applicant was of advert is interest to authorities when he departed Sri Lanka. If CID officers visited the applicant’s wife in early 2014, this would strongly suggest the applicant was of adverse interest to the authorities after he departed Sri Lanka in 2012. In the circumstances, it was logical for the Authority to first find whether the claimed visit in early 2014 occurred, and then find whether the applicant was of adverse interest authorities after he departed Sri Lanka in 2012.
Fourthly, the applicant by reporting the smuggling operation to a relevant officer in Sri Lankan authorities, exposed himself to real risk of harm from those whose criminal activities he disrupted. Taking into account that “what has occurred in the past is likely to the most reliable guide as to what will happen in the future: (see; Minister for Immigration and Ethnic Affairs v Guo 191 CLR 559 (“Guo”) at [575]), a question arose as to whether not the applicant would engage in similar conduct in the future if required to return to Sri Lanka. The Authority did not address this question and this involves jurisdictional error.
It was conceded that the applicant did not expressly make this claim, however, it was submitted that the claim arose on the material that was before it and as such, the Authority was required to deal with it: (see; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] 144 FCR 1 at [55] – [63]; AYY17 v Ministerfor Immigration and Border Protection (2018) 261 FCR 503).
Ground two alleges that at [28] the Authority accepted that the applicant “may reengage with” the UNP if returned to Sri Lanka. The Authority noted that country information as at the date of the decision stated that “there was considerable animosity between the UNP and SLFP in the past” although there was presently a coalition between these two parties.
It was submitted that taking into account “what has occurred in the past is likely to be the most reliable guide as to what will happen in the future (see; Guo at [575]), a question was whether again that there would be “considerable animosity” between the two parties in the reasonably foreseeable future. Although the Authority asserted at [29] it had considered the position to the applicant into the reasonably foreseeable future, the Authority did not consider this issue. This involves jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one relates to the factual findings made by the authority in [34] and [35] of its reasons. Ground one relies upon 4 particulars. Particular (a) asserts jurisdictional error regarding the applicant’s claim concerning the government politician who the applicant alleges supported or protected drug smugglers and was involved in an attack on the applicant.
Firstly, the applicant asserts the Authority erred when it failed to consider that there was a possibility that there was a real chance that the MP, who the applicant identified, was responsible for the attack on him on 24 August 21. It was submitted this should be rejected as an impermissible challenge to the factual findings of the Authority and seeks the Court to engage in impermissible merits review.
At [32] the Authority made the following findings:
· It is not in itself implausible that corrupt members of the authorities were involved in people or drug smuggling operations in 2012 and I accept the applicant has heard rumours to this effect. However when weighed together, I consider the discrepancies in the applicant’s claims regarding reporting his attack to the police and about how he learned of the MP’s involvement in his attack it to be significant. I am not satisfy the applicant knows who was responsible for the attacks on himself and his shop nor their motive, and I do not accept he attempted to seek police assistance. I am not satisfied the female MP was threatening the applicant or ordered the attack against him.
It was submitted the factual finding in relation to the MP was based upon a weighing of the evidence given by the applicant. There is no basis for arguing the authority or to have considered the “possibility” she was involved. In the present case, unlike Rajlimgam, there is no uncertainty as the authority found the applicant did not know who was responsible for the attack and was not satisfied the MP was threatening the applicant or had ordered the attack against him.
Secondly, the applicant asserts the based on the Authority’s findings the applicant faced a real chance of harm from the MP if he was returned to Sri Lanka as the MP was involved in protecting drug slop smugglers. It was submitted there should be rejected again, as impermissible merits review because at [32] the tribunal was not satisfied that the MP was threatening the applicant or order the attack against him
Ground two claims that the Authority committed jurisdictional error as it failed to deal with the applicant’s claim regarding his UNP political opinions, upon his returned to Sri Lanka in the context that he may reengage with them upon return. The Authority did find that there was considerable animosity between the UNP and SLFP in the past although there was presently a coalition between the two parties.
It was submitted that the ground should be rejected as impermissible merits review as it is a challenge to the factual findings of the Authority. At [28] the Authority found that the applicant was not actively engaged in party politics and that he was a “low level member only” and that his activities were limited to the time he lived in Kandy, the Authority went on to find that it was not satisfied he would become a politically active member of the UNP on return. Nevertheless, the Tribunal considered that if he were to return to Kandy, he may engage with the party albeit a low level.
Based on this finding, it was open to the Authority to find it was not satisfied there was a real chance the applicant would face serious harm by reason of his political opinions and previous political activities upon return. The ground invites the Court to undertake impermissible merits review
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Authority is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).
Nor does the Tribunal Authority have to possess rebutting evidence before holding that a particular assertion was not made out: (see; Selvaduri v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:
The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
[19] It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
Ground one consists of a series of attacks on the factual findings of the Authority on the basis that the Authority should have considered alternative possibilities or that the reasoning of the Authority was what not logical.
Particular (a) asserts the Authority should have been concerned with the possibility that the MP was involved in the attacks upon him. At [32] the Authority made specific findings that it was not satisfied that the MP was threatening the applicant or ordered the attack against him. These findings need to be read as a whole. While the Authority found it was not implausible that corrupt members of the authorities could be involved in people of drug smuggling, it then found that the particular MP complained about was not threatening or ordered the attack. These were dispositive findings. In making these findings, it was not then necessary for the Authority to consider the possibility that the MP may have been involved in the attacks. The Court agrees with the submission of the first respondent that firstly such an enquiry was not necessary and secondly, the attempt to impugn the reasoning of the Authority in this regard involves impermissible merits review.
The Court does not accept the second assertion in particular (a) that the applicant faced a real chance of harm from the MP if he was required to return to Sri Lanka. The Authority made a dispositive finding at [32] that the MP was not threatening the applicant and did not order an attack against him. The requirement set out in Ranjalingham to consider an alternate possibility was not required as the factual finding was not subject to any caveat. Again, this submission seeks to impermissibly cattle with the Authority’s factual findings.
The applicant further complains that the Authority relied in discrepancies between the entry interview and later evidence. It was submitted that the reasoning process offended MZZJO v Minister (2014) 239 FCR 436 at [56] – [57]. That decision requires:
Some caution to be exercised by decision makers in relation to omissions of matters at entry interview… Had the tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of the task on review.
This error is not apparent in the Authorities reasons in this matter. The inconsistencies referred to by the Authority at [30] and [31] included a reference to inconsistencies both in the SHEV interview and the written claims made by the applicant. As the inconsistencies went beyond omissions in the entry interview, jurisdictional error is not apparent.
Particular (b) claims the finding at [33] that “I do not accept this visit [by the CID to the applicant’s home and wife] was indicative of the authorities or any politician in having an adverse interest in the applicant’, suffers from a similar defect as outlined above, in that the Authority did not rule out the possibility that he does not face a real chance of harm upon return. The Authority found at [32] that it was ‘not satisfied the applicant knows who was responsible for the attack on himself or his shop… I am not satisfied the MP was threatening or ordered the attack on him’.
The Authority goes on to find at [34] “I am not satisfied he [the applicant] was of any adverse interest to authorities when he departed Sri Lanka”. In the light of this dispositive finding it was not necessary for the Authority to consider the possibility of harm set out in Ranjalingham from authorities upon return. Particular (b) has no merit.
Particular (c) is a claim of illogicality in paragraph [34]. This particular was not pressed during oral submissions by Counsel for the applicant, after a concession that the impugned words did not give rise to illogicality even if found that would meet the stringent test to ground jurisdictional error.
Particular (d) asserts that the Authority should have considered the risk to the applicant if, upon return, he were to engage in similar conduct by reporting criminal activities to authorities. It was conceded in the written submissions, filed by the applicant, that this claim was never expressly made. It was submitted that if it arose on the materials, the Authority was required to deal with it: (see; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [55] – [63] and AYY 17 v Ministerfor Immigration and Border Protection (2018) 261 FCR 503.
The Court does not accept this claim arose on the materials. The Authority set out in significant detail at [9] the applicant’s claims for protection. The Authority accepted if he returned to Sri Lanka, he may re-engage with the UNP but at a low level, and thus was not at risk. A fair reading of the entire reasons for decision does not indicate that the issue of further informing authorities on illegal activities that the applicant might come across in the future was raised in the material before the Authority. As it does not in the Court’s view arise, no error is apparent. Particular (d) has no merit.
Ground two is an attack based upon the finding that the applicant may “reengage with the UNP on his return, and so face the real risk of harm. The court is satisfied that the Authority did consider the risk of harm, finding that it was not satisfied he would become politically active upon return. Contrary to the submission of the applicant, the Authority also turned its attention to what might happen if the applicant were to return to Kandy. It found he may reengage with the UNP, but at a low level. The Court is satisfied this finding was reasonably open to the Authority on the evidence that was before it. The Authority specifically noted that a coalition existed between the two main political parties as at the time of its decision. There was thus no risk to the applicant, if he were to reengage with the SNP. To suggest that the Authority was then required to look at circumstances where the coalition might disintegrate, and this result in political unrest, which might impact on the applicant, if he were to return to Kandy, and be engaged, as the Authority found, at a low level with the SNP, goes well beyond what might be expected of the Authority, in looking at risk in the reasonably foreseeable future, and goes into the realm of high level speculation on circumstances that are remote and a mere possibility. Such speculation is not required of the Authority. A failure to engage in sheer speculation does not amount to jurisdictional error.
The Court also accepts the submission of the first respondent that ground two seeks the Court to engage in impermissible merits review. Ground two has no merit.
CONCLUSION
None of the grounds of judicial review have merit. Accordingly, the application is dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 30 June 2023
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