FLE17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1035
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLE17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1035
File number: MLG 2721 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 15 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority acted unreasonably by not exercising its discretion under s 473DC of the Migration Act 1958 (Cth) or by failing to invite the applicant to comment on the delegate’s decision – whether the Authority failed to apply the ‘What if I am wrong?’ test – whether the Authority failed to have regard to relevant country information – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 473CB, 473DA, 473DB, 473DC, 473FB, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2020] FCAFC 210
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 10 October 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr R O’Shannessy Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2721 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLE17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $7,000.
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 Sri Lankan Tamil 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 asserts that the Authority decision is affected by jurisdictional error because the Authority:
(a)unreasonably failed to exercise its discretion in s 473DC of the Migration Act to invite the applicant to comment on the delegate’s decision; and
(b)failed to apply the ‘What if I am wrong?’ test before finding that the risk of torture or mistreatment was low.
For the reasons explained below, I have found that the applicant has not established that the Authority made a jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant is a Sri Lankan citizen who entered Australia in November 2012. He is an unlawful maritime arrival within the meaning of s 5AA of the Migration Act.
On 10 January 2013 the applicant participated in an Irregular Maritime Arrival Entry Interview (entry interview) with an officer of the Minister’s Department.
The applicant applied for a protection visa on 5 January 2017. His claims for protection were set out in a statement that accompanied his protection visa application.
On 2 May 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 11 May 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was referred to the Authority for review pursuant to s 473CA of the Migration Act.
The applicant provided a letter to the Authority which was received by the Authority on 2 June 2017. In the letter, amongst other things, the applicant indicated that he was unable to prepare a submission within 21 days of the referral to the Authority and he requested that the Authority schedule an oral interview.
On 23 November 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE AUTHORITY DECISION
The Authority had regard to the material given to it by the Secretary under s 473CB of the Migration Act. In respect of the letter the applicant sent to the Authority, received on 2 June 2017, the Authority relevantly:
(a)noted that, although the applicant claimed the 21 day timeframe to provide a submission was arbitrary, he had not requested an extension of time and had not provided a submission in the months since the letter was sent; and
(b)considered the applicant’s request for an interview but was not satisfied that an interview was required in this case.
The Authority accepted that the applicant was a citizen of Sri Lanka of Tamil ethnicity and of the Christian faith and that he originates from the Northern Province of Sri Lanka. The Authority accepted that Sri Lanka was the receiving country for the purpose of review.
The Authority accepted that the applicant left Sri Lanka for India as a very young child with his family in 1990 as a result of the unsafe situation for Tamils during the war. The Authority also accepted that, apart from a period of time from 1995 to 1997 when his family returned from India to Sri Lanka, the applicant had lived in refugee camps with his family in Tamil Nadu in India until 2012. The Authority also accepted that the applicant had experienced a difficult life as a refugee in India.
The Authority noted that the applicant did not, at any time, claim that either he or any of his family members had links to the Liberation Tigers of Tamil Eelam (LTTE). The Authority was satisfied that the applicant was not in any way involved in the LTTE, that he was not a member or supporter of the LTTE and that none of his other family members were involved in any way with the LTTE.
The Authority accepted that the applicant may have subjective fears about returning to Sri Lanka based on his family’s displacement from Sri Lanka as a result of civil conflict and based on what he has heard. However, the Authority noted that the applicant had not had any experiences with authorities as an adult in Sri Lanka, having lived outside the country for most of his life.
The Authority did not accept that the applicant would be a person of interest to the Sri Lankan authorities as he did not have any LTTE profile, as either an LTTE member, supporter or sympathiser, and the applicant left the country as a young child.
The Authority accepted that the applicant may have lost contact with his extended family when he left Sri Lanka with his family during the war and that he may not have immediate family or a home to go back to and would have to start his life in Sri Lanka afresh. However, the Authority was not satisfied that this would result in a real chance of the applicant being harmed.
The Authority acknowledged that Tamils may still face some problems but it did not accept that there had been no improvements made in Sri Lanka for Tamils. The Authority accepted that many Tamils had fled Sri Lanka but that was in the context of a civil war that ended in 2009.
The Authority recorded that the applicant did not fit the profile of a person who evidences any past membership or connection to the LTTE. The Authority was satisfied that the applicant did not have any actual or imputed LTTE profile because of his Tamil ethnicity or his origin from the former LTTE controlled Northern Province of Sri Lanka.
The Authority did not accept that there was a real chance that the applicant would face discrimination because of having lived outside of the country for most of his life. The Authority recorded that the Department of Foreign Affairs and Trade (DFAT) assessed that there was no evidence to suggest there was a real chance individuals would experience official or societal discrimination upon return, though the process of returning from Tamil Nadu in India to Sri Lanka can involve some challenges.
The Authority was not satisfied that there was a real chance the applicant would suffer harm upon return to Sri Lanka because of his Tamil ethnicity or his origin from the former LTTE controlled Northern Province or because he is a returning Tamil who had lived abroad for an extended period, including in both India and then Australia, or any combination of these factors.
The Authority accepted that if the applicant was returned to Sri Lanka, he may be identified as a person who has sought asylum in Australia and who departed Sri Lanka illegally with his family as a very young child. Having regard to country information and its finding that the applicant would not be of adverse interest to the Sri Lankan authorities, the Authority was not satisfied there was a real chance the applicant would suffer serious harm on his return to Sri Lanka as a returning asylum seeker.
In circumstances where the applicant was a minor on both occasions he departed Sri Lanka illegally, the Authority considered that there was only a small chance that he would be charged for an offence under the Immigrants and Emigrants Act. Nevertheless, the Authority proceeded to consider the risk that the applicant would face if he was charged on return to Sri Lanka. Considered cumulatively, the Authority was not satisfied that the totality of the treatment that the applicant might experience on return, including being questioned and detained for several hours at the airport, then potentially being detained on remand for up to several days in overcrowded and unsanitary conditions, and having to pay a fine, would amount to serious harm.
Based on these findings of fact, the Authority was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act.
The Authority also considered whether the applicant met the complementary protection criterion. Relying on the same findings of fact, and that ‘real risk’ and ‘real chance’ have been found to be the same standard, the Authority found that the applicant would not face a real risk of significant harm upon return to Sri Lanka on account of his Tamil ethnicity, his origin from a former LTTE province in Sri Lanka, because he would be a returning Tamil who has lived abroad for an extended period, or because he would be a returning asylum seeker, or any combination of these factors. The Authority considered that the treatment that the applicant might face if he is charged under the Immigrants and Emigrants Act would not amount to significant harm as defined in s 36(2A) of the Migration Act. The Authority therefore 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 13 December 2017. The application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application contains the following two grounds:
1.The IAA was aware that the Applicant was not represented at either the primary or review stages of the application process. The applicant speaks no English. The IAA unreasonably exercised its discretion under s473DC of the Migration Act 1958 by not providing the applicant with an opportunity to provide comment on the primary decision. This was procedurally unfair.
2.The IAA Reviewer has been unreasonable in their assessment of the evidence, and has committed a fundamental error of law by not considering the “What if I’m Wrong Test”. In paragraph 46, the IAA reviewer notes that the situation of Tamil returnees cannot be verified, but nonetheless makes an assessment the risk of torture or mistreatment is low. The IAA erred by disregarding country information which existed in support of the applicant’s subjective fears for protection.
The applicant did not file any amended application with proper particulars of the grounds of application, or any written submissions, despite having the opportunity to do so 28 days before the hearing, pursuant to an Order made by a Registrar on 5 September 2018. The Minister filed written submissions on 29 September 2024 in accordance with the Order.
The evidence before the Court comprises the court book filed on behalf of the Minister on 11 July 2018 and an affidavit filed by the applicant on 13 December 2017 which annexes a copy of the Authority decision.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Authority decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The applicant’s oral submissions at the hearing
At the hearing before the Court, I reminded the applicant of the grounds in his application and gave him an opportunity to make submissions in relation to those grounds. I also asked specific questions of the applicant about the grounds to try and elicit further detail about the grounds he was advancing. The applicant did not make any meaningful submissions about the grounds in his application.
The applicant was afforded an opportunity more generally to make submissions about any jurisdictional error in the Authority decision. The applicant submitted that it has been 10 or 11 years since he came to Australia and he does not know what to say. He has been here for a long time and a decision has not been taken so he does not now know what to tell the Court. He does not have any help. He submitted that he is still a human being and, whatever anyone does, they should consider everything and give a good decision. The applicant submitted that he has fear in his mind and he prepared to give answers in Court but he has forgotten everything in his head.
The applicant submitted that during the years he lived in Sri Lanka and India, he was not allowed to come up in life. The applicant submitted that he has been displaced from place to place since childhood and he has not had a good decision. If there had been a good decision open to him, he would have made a good decision. He is very worried and cannot sleep because of his worries and he has not married yet. He takes sleeping tablets at night to sleep.
The applicant submitted that when he came to Australia, things were not good at that time. If a decision had been made at that time, that would have been good. Now he is really confused.
In his reply submissions, the applicant said that, in each country, he has not had any permanent status.
None of the matters raised in the applicant’s oral submissions amount to jurisdictional error in the Authority decision. While the length of time it has taken for the applicant’s claims for protection to be assessed and for his judicial review application to come to a final hearing is unfortunate, it does not allege or establish jurisdictional error in the Authority decision. The Authority was required to assess whether the applicant engaged Australia’s protection obligations based on the state of affairs that existed at the time of the Authority decision and that is what it did. It is understandable that the applicant may wish to pursue a better life for himself in Australia, but, as explained above and as I explained to the applicant at the hearing, the Court’s role is limited to assessing whether the Authority made a jurisdictional error.
Ground 1
By ground 1, the applicant asserts that the Authority acted unreasonably in the exercise of its discretion under s 473DC of the Migration Act by not providing him with an opportunity to comment on the delegate’s decision. The applicant also asserts that this was procedurally unfair.
Relevant legislation
The Authority’s procedural fairness obligations are exhaustively set out in the Migration Act. Section 473DA(1) of the Migration Act provides that the provisions in Division 3 of Part 7AA, along with two further provisions that have no application in the present case, comprise an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. Subject to the provisions of Part 7AA of the Migration Act, the Authority is to conduct its review based on the materials referred to it by the Secretary under s 473CB, without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1) of the Migration Act.
The Authority does, however, have a discretion in s 473DC of the Migration Act to get new information. Section 473DC provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The Authority is required to act reasonably in the exercise of its discretion under s 473DC: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3], [61], [80].
Section 473FB of the Migration Act allows the President of the Authority to issue practice directions, including in relation to reviews conducted by the Authority. The President issued such a practice direction on 1 February 2017 and a copy of this practice direction was provided to the applicant on 17 May 2017.
Relevantly to the consideration of this ground, the practice direction contained paragraphs relating to the opportunity to comment on the delegate’s decision. In particular, [20] and [21] of the practice direction read:
20.For the purposes of the review, you may provide a written submission on the following:
•why you disagree with the decision of the Department
•any claim or matter that you presented to the Department that was overlooked.
21.Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:
•be no longer than 5 pages,
•be easily legible using a font size of at least 11 point with standard margins of at least 2.54cm, and
•should be provided to us within 21 days of your case being referred to us by the Department.
The practice direction contains further paragraphs relating to the provision of new information.
The applicant’s letter to the Authority and the Authority’s reasons in response
A file note made by the Authority recorded that at 2:43pm on 2 June 2017, the applicant called the Authority with the assistance of a person from the Asylum Seeker Resource Centre (ASRC). The applicant told the Authority that he had not received a copy of the delegate’s decision record with his notification and requested a copy to be emailed to the ASRC. The person assisting the applicant asked whether he could request an extension of time and was told that this had to be requested in writing.
On 2 June 2017, shortly after the phone call, the applicant sent to the Authority an email attaching a letter which referred to his desire to provide a submission in the following terms:
I would like to provide a written submission to the IAA in accordance with Practice Direction 1 explaining why I disagree with the decision of the Department and any matter I think was overlooked, but I am not able to provide a submission for the following reasons:
1.Short timeframe: the timeframe for providing this submission is 21 days from the date my case was referred to the IAA by the Department. This timeframe is unreasonable and arbitrary, and I am not able to complete a submission within this time.
2.Legal assistance: I require the assistance of a lawyer to complete this submission, because to respond to the Department’s decision about my case requires legal advice and assistance. I cannot afford to go to a private lawyer and I cannot access free legal assistance for my case in this unreasonably short timeframe.
3.Complexity of response: the Department’s decision is lengthy and written in English. I have not had this decision translated to me in my own language. The decision also makes many findings which I have only just heard for the first time.
The letter also contained the following paragraph requesting an oral hearing:
Oral hearing: I also believe and request that I should be afforded an opportunity to present my claims in person, and therefore that the IAA should schedule an oral hearing. I submit that the IAA would fall in error if it did not conduct a hearing, particularly if it makes adverse credibility findings.
Shortly after this letter was sent, also on 2 June 2017, the Authority sent a copy of the delegate’s decision record to an email address of the ASRC.
The Authority addressed the requests in the applicant’s letter in its reasons.
In relation to the applicant’s indications that he wished to provide a written submission, the Authority said at [4]-[7] of its reasons:
4.On 2 June 2007 the IAA received a letter prepared by the applicant with the assistance from the Asylum Seeker Resource Centre (ASRC) advising that he would like to provide a written submission to the IAA explaining why he disagrees with the decision of the Department and any matter he considers was overlooked, but has been unable to do so for a number of reasons. The stated reasons include:
•Short time frame of 21 days in which to complete a submission
•The length of the Department’s decision
•Access to documents
5.In respect of the 21 day timeframe for providing a submission, which the applicant states is unreasonable and arbitrary, I note that despite making this claim the applicant has not requested an extension of time to provide such a submission and it has now been a number of months since the letter was sent on his behalf with no submission having been received.
6.The applicant claims that the Department’s decision was lengthy, which I note is approximately 8 pages in length, and that he has not had it translated. However, he further states in his letter that the decision makes many findings which he has only just heard for the first time. This suggests he is aware of the contents of the decision.
7.In respect of access to documents, being all information before the IAA, including all documents provided by the Secretary under s 473CB, I note that the only documents that the ASRC requested from the IAA on behalf of the applicant was the decision record, which was promptly provided by the IAA to the ASRC on the same day of this request, namely 2 June 2017. If there were further documents or information that the applicant or the ASRC on behalf of the applicant was seeking, then I would expect that they would have followed these up upon receipt of the decision record. However, no such follow up request was made. Nor was an FOI application made by the applicant. I note that s.473DA of the Act does not require the IAA to give to a referred applicant any material that was before the delegate when the delegate made the decision.
In relation to the applicant’s request to attend an interview, the Authority said at [8]:
The applicant also claims that he should be afforded an opportunity to present his claims in person and for this purpose the IAA should schedule an oral hearing. Further, that the IAA would fall in error if it did not conduct such a hearing, particularly if it makes adverse credibility findings. I note that the Part 7AA of the Act does not provide applicants with an opportunity to discuss their claims at a hearing. The IAA may conduct an interview in limited circumstances to obtain new information or comment on certain new information. The applicant has had every opportunity to present his claims and all supporting evidence. He was clearly reminded by the delegate at the PV interview that if he did not provide the Department with all relevant information about his protection claims he may not have another chance to provide further information to support his claims if his application is refused. There is no indication by the applicant that he has any new claims which have not been considered previously. I am not satisfied that an interview is required in this case.
Consideration of whether the Authority acted unreasonably or denied the applicant procedural fairness
Insofar as the ground asserts that the Authority did not give the applicant an opportunity to comment on the delegate’s decision, I accept the Minister’s submission that it fails at a factual level. The applicant was given a copy of the practice direction informing him of his right to provide a submission. The Authority gave the applicant a further copy of the delegate’s decision on 2 June 2017, at which time he was receiving assistance from the ASRC, and then did not deliver its decision until 23 November 2017, over five months later. There was ample opportunity for the applicant to provide a submission to the Authority commenting on the delegate’s decision if he wished to do so. The findings and reasoning of the Authority reflected in [4]-[7] of its reasons disclose no jurisdictional error.
To the extent that the ground asserts the applicant was denied procedural fairness, it cannot succeed. The applicant has not identified any provision in Division 3 of Part 7AA of the Migration Act that the Authority did not comply with and, on review of the Authority’s reasons and the other documents in the court book, there is nothing to indicate that the Authority may have breached any provision in Division 3 of Part 7AA. Although the applicant’s ground refers to s 473DC, as set out above, s 473DC(2) provides that the Authority does not have a duty to get, request or accept new information in any circumstances. As a matter of procedural fairness, the Authority was not required to invite the applicant to an interview or otherwise invite him to provide new information in relation to the issues in the review.
I also accept the Minister’s submission that it was not unreasonable for the Authority not to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant or to invite him to an interview. The Authority explained at [8] of its reasons why it did not invite the applicant to attend an interview. The conclusion reached by the Authority was open to it and its reasons disclose no misunderstanding of its discretionary powers. I accept the Minister’s submission that this case does not have any features that would make it unreasonable for the Authority not to invite the applicant to provide new information. It does not share features with the types of cases in which the courts have in the past found that the Authority acted unreasonably in its approach to s 473DC of the Migration Act. For example:
(a)it is not a case in which the Authority’s decision turned on a wholly new dispositive issue that it lacked information about and about which the applicant could have supplied information: see, for example, Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2020] FCAFC 210 at [82]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32 at [94];
(b)it is not a case in which the Authority departed from the delegate’s favourable findings based on demeanour without taking its own assessment: see, for example, DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 at [46]; and
(c)it is not a case in which the Authority made adverse credibility findings contrary to those of the delegate in circumstances where there was an informational gap because, unlike the delegate, the Authority was not able to visually assess the applicant’s demeanour: see ABT17 at [25].
Ground 1 is not established.
Ground 2
The ‘What if I am wrong test?’
By ground 2, the applicant asserts that the Authority erred by not considering the ‘What if I am wrong test?’.
The ‘What if I am wrong?’ test was discussed in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (Rajalingam), in which Sackville J said at [62]-[63]:
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.
63.Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
The principle requires that if a decision-maker is determining the risk of future harm based on the occurrence of past events of harm, and expresses some doubt as to whether those past events occurred, the decision-maker is required to consider the possibility that the events might have occurred in assessing the risk of future harm. As the Minister identified in his submissions, the relevant doubt is with respect to the findings about past events relevant to its consideration of future persecution, not about the applicant’s claims or evidence.
Relevant parts of the Authority’s reasons
The applicant in his ground refers to [46] of the Authority reasons. The applicant’s description of [46] in his ground is that the Authority notes the situation of Tamil returnees cannot be verified, but nonetheless makes an assessment that the risk of torture or mistreatment is low.
The Authority’s reasons at [46] should be read together with [44] and [45], which address the procedures that are used when a person who has departed Sri Lanka illegally returns to Sri Lanka. I infer that the reference to a finding that the risk of torture or mistreatment is low is a reference to [36] of the Authority’s reasons. The Authority said at [36], and [44]-[46] (footnotes omitted):
36.As referred to in the DFAT report, thousands of asylum seekers have been returned to Sri Lanka since the end of the civil war, including from Australia, with relatively few allegations of torture or mistreatment. Specifically, DFAT has recently assessed the risk of torture or mistreatment for the majority of returnees to be low and that this risk continues to reduce, including for those suspected of an illegal departure offence under the Immigrants and Emigrants Act 1949 (I&E Act).
…
44.Returnees charged with an illegal departure offence under the I&E Act will be fingerprinted and photographed, then transported to the nearest Magistrates Court at the first available opportunity. However, returnees may be required to remain in police custody at the CID’s airport office for up to 24 hours after arrival, while waiting to be brought before the closest Magistrate’s court. If a magistrate is not available before this time, for example, because of a weekend or public holiday, those charged may be held at a nearby prison.
45.DFAT reports that according to the Sri Lankan Attorney General’s Department, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. Fines are issued to act as a deterrent towards departing illegally in the future. Where a person pleads guilty, they will be fined (which can be paid by instalments) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor, in which case they may sometimes need to wait until a family member comes to court to collect them. Conditions in relation to bail are rarely imposed and an accused will only need to return to court when the case against them is being heard.
46.DFAT reports that the same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. DFAT has been advised by the Sri Lankan Government that no returnee from Australia to Sri Lanka has been charged under the PTA and considers that while credible, it cannot verify this claim.
There was no error in the Authority’s approach
The Authority’s observation at [46] was that DFAT could not verify a claim as credible related to advice from the Sri Lankan government that no returnee from Australia to Sri Lanka had been charged under the Prevention of Terrorism Act. I accept the Minister’s submission that the Authority at [46] was not considering a factual finding as to a claim of past harm, about which the Authority expressed ambivalence. I further accept the Minister’s submission that the observation about the country information on the Prevention of Terrorism Act did not give rise to any factual findings on whether the applicant would be charged under the Prevention of Terrorism Act.
Likewise, the Authority’s observation at [36] was an observation about what the country information before it said. This is simply one aspect of the country information relied on by the Authority in reaching its conclusion that the applicant did not engage Australia’s protection obligations.
I accept the submission advanced by Counsel for the Minister at the hearing that, in this case, the Authority did not make any findings rejecting the applicant’s claims about things that happened in the past. There was therefore no alternative factual scenario that the Authority was required to consider when assessing the risk of harm that the applicant may face in the future, applying the principle in Rajalingam.
Country information
The applicant further asserts that the Authority erred by disregarding country information which supported his subjective fears. The applicant has not identified any particular country information that he believes the Authority disregarded. As submitted by the Minister, the choice of country information and the weight to be given to the country information are matters for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The Authority in its reasons considered a range of country information from DFAT, the United Nations High Commissioner for Refugees (UNHCR), the United States Department of State, the United Kingdom Home Office, Freedom from Torture and some newspaper articles. The Authority relied most heavily on the DFAT report. It was reasonably open to the Authority to rely on the country information in the manner in which it did.
Ground 2 is not established.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 October 2024
0
16
1