FPB17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 916
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FPB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 916
File number: MLG 2778 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 20 September 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to consider a relevant consideration – whether the Authority erred in interpreting or applying the law – whether the Authority made a finding which was legally unreasonable or made findings without logically probative material – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 36, 65, 473CA, 473DC, 473DD, 473FB, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BMH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1062
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs (2022) 175 CLR 582; [2022] HCA 17
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: 73 Date of hearing: 12 March 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Vrachnas Lawyers Counsel for the First Respondent: Mr N Dour Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2778 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
20 SEPTEMBER 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 Sri Lankan Tamil who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority) on 15 November 2017. 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 advances three grounds alleging that the Authority decision is affected by jurisdictional error on the basis that the Authority:
(a)failed to consider a relevant consideration, namely, whether the applicant had an adverse travel history in Sri Lanka, and the prevalence of torture and abuse in Sri Lanka;
(b)erred in interpreting or applying the law, including in relation to the submission of an untranslated document, in failing to exercise the discretion in s 473DC of the Migration Act to get new information from the applicant, in relation to the term ‘well-founded fear of persecution’ in s 5H(1)(a) of the Migration and in relation to the ‘real chance’ and ‘real risk’ tests for the purposes of s 36(2)(a) and (aa) of the Migration Act; and
(c)was legally unreasonable or made findings without logically probative material.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA HISTORY AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in October 2012 and is an unauthorised maritime arrival as defined in s 5AA of the Migration Act.
On 22 April 2016 the applicant lodged an application for a protection visa. The application was accompanied by a statement setting out the applicant’s claims for protection.
The applicant attended an interview with an officer of the Minister’s Department on 4 November 2016 to discuss his claims for protection (protection visa interview).
On 23 May 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
On 5 June 2017 the applicant, via his representative, provided to the Authority a submission and a number of documents that were not before the delegate and which comprised new information. The applicant’s representative provided English translations of some of the documents to the Authority on 19 June 2017 and 21 June 2017.
On 15 November 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE AUTHORITY DECISION
Where the specific findings of the Authority are relevant to the grounds raised in the judicial review application, they are discussed in more detail in the consideration of the grounds below.
More generally, in finding that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act and the complementary protection criterion in s 36(2)(aa) of the Migration Act, the Authority made the following relevant findings:
(a)The Authority accepted that the applicant is a Sri Lankan Tamil from the Eastern Province of Sri Lanka but, having regard to country information, was not satisfied that the applicant’s Tamil ethnicity, even when combined with his place of origin, would, of itself, warrant international protection.
(b)The Authority considered it plausible that in 2001 the applicant’s father was arrested and detained on suspicion of supporting the Liberation Tigers of Tamil Eelam (LTTE) because the applicant’s family were Tamils from the Eastern Province and because they were perceived as having the financial means to support the LTTE fighters. The Authority accepted that the applicant’s father was subsequently found to be innocent. The Authority noted the applicant’s evidence at the protection visa interview that neither his father nor any other member of his family had any real links to the LTTE and that prior to July 2012 the applicant had not claimed to have experienced any adverse attention himself as a result of his parents’ detention for allegedly supporting the LTTE. The Authority was not satisfied that the applicant would be perceived to have any role in the LTTE and found that there was no credible evidence that the authorities ever suspected him of being an LTTE member, supporter or sympathiser. The Authority found that, in the absence of any real or perceived links to the LTTE, it was not satisfied the applicant’s Tamil ethnicity or his origin and residence in a former LTTE-controlled area would cause him to be a person of concern to the Sri Lankan authorities.
(c)The Authority accepted that the applicant was a member of a sports club in his village from 2009 until 2011 and that the applicant, along with other members of the club, engaged in volunteer work for the Tamil National Alliance (TNA). The Authority accepted that the applicant was a low-level supporter of the TNA but noted that there was not otherwise evidence before it that he had any political affiliation with the TNA itself or that he was an actual member of the TNA or had ever run for elected office or held any leadership position in the TNA. The Authority noted that there was no recent evidence of systematic targeting of TNA members, supporters or employees in Sri Lanka and referred to country information that suggested that the TNA continued to have significant support in Sri Lankan politics. The Authority did not consider that there was a real chance that, because the applicant was interested in or had assisted the TNA with campaigning, he would be considered as a threat to the Sinhalese government as a contributor to the possible reemergence of the LTTE or that the authorities would see him as a threat. The Authority was not satisfied that the applicant would face a real chance of any harm on account of his previous support of the TNA.
(d)The Authority accepted that in June 2012 the applicant was arrested and questioned by police over a two-hour period in relation to the burning of a motorcycle and was assaulted during the period he was detained. The Authority found that, having denied the allegations, he was then released after two hours and was not charged for the offence.
(e)The Authority rejected the applicant’s claim to have received a threatening phone call from an unidentified caller warning him to cease supporting the TNA in 2012 as it did not consider the claim to be credible.
(f)The Authority was not satisfied that the applicant was of any continuing interest to the Sri Lankan authorities after June 2012 and did not accept that the police, Criminal Investigation Department (CID) or other Sri Lankan authorities sent a letter to the applicant’s family in relation to the applicant or that there was any reason why the police and CID would have a continued interest in the applicant’s whereabouts, noting it had been several years since he was questioned regarding the police motorcycle incident and that he was released without charge.
(g)The Authority accepted that if the applicant is returned to Sri Lanka he may be identified as a person who had sought asylum in Australia and who had departed Sri Lanka illegally. Having regard to country information, the Authority was not satisfied that there was a real chance the applicant would be harmed for this reason. The Authority considered the treatment that the applicant may face upon return to Sri Lanka at the airport and for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) but was not satisfied that this treatment would amount to serious harm or significant harm.
JUDICIAL REVIEW APPLICATION
The applicant filed his application to this Court on 18 December 2017, and therefore made the application within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 21 February 2024 which raises three grounds of application. The grounds are set out under individual headings below.
The evidence before the Court comprises:
(a)a report prepared by the Department of Foreign Affairs and Trade (DFAT) and published on 24 January 2017 titled ‘DFAT Country Information Report Sri Lanka’ (DFAT report) (exhibit 1); and
(b)the court book filed by the Minister on 27 August 2018 (exhibit 2).
GROUND 1: DID THE AUTHORITY FAIL TO CONSIDER A RELEVANT CONSIDERATION?
By ground 1, the applicant asserts that the Authority failed to consider relevant considerations relating to what the applicant describes as his ‘adverse travel history’ and in relation to country information on torture in Sri Lanka. The ground reads:
The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.
Particulars
(a)The Authority failed to have regard to information before it in that it failed to consider an articulated claim raised by the applicant in that he has an adverse travel history in Sri Lanka which forced him to depart the country illegally. The applicant articulated that his passport was confiscated by the police when he returned to Sri Lanka in 2011 and was only released after his father paid a bribe. The passport was not returned to the applicant, forcing him to depart Sri Lanka illegally in 2012. The Authority failed to consider whether the fact that he has an adverse travel history in and of itself will cause the applicant to not be granted bail on his return to Sri Lanka, as the Authority states would be available to him.
The Authority therefore failed to consider whether this adverse travel pro will cause the applicant to be remanded in unsanitary and overcrowded conditions for longer than a period of several days which could amount to serious harm.
(i)I also note that in the PV interview the applicant was asked to explain his statement in his final comments in support of his protection visa application that he could not leave Sri Lanka legally by passport. His response to this was basically because the police had confiscated when he returned from a business trip from Singapore sometime in 2011. He said that because he brought back jewellery from Singapore for the family jewellery business the police arrested him and his father had to come and pay a bribe before he was released. (Decision [22], emphasis added)
(ii)As the applicant left Sri Lanka in breach of the I&E Act, I accept that he is likely to be charged and, if he pleads guilty, he will be fined and then released. If the applicant elected to plead not guilty to this offence, he would either be granted bail on personal surety or he may be required to have a family member act as guarantor. There is no information before me that indicates that the applicant was involved in organising or facilitating people smuggling or that he was other than an ordinary passenger on such a venture. I am not satisfied that the applicant would be given a custodial sentence.
(b)The Authority failed to have regard to information before it in that it failed to cumulatively consider all of the integers of the applicant’s claim, including his adverse travel history profile. The Authority’s cumulative assessment does not expressly deal with the possibility that, when considered cumulatively, the risks to the applicant might become significant.
(c)The Authority did not consider all the material and information before it relating to the prevalence and culture of torture and abuse in Sri Lanka, including the abuse of persons in detention, particularly the whole of the DFAT report on Sri Lanka dated 24 January 2017.
Relevant legal principles
There is no dispute between the parties that the Authority was required to consider:
(a)each of the claims for protection that were expressly articulated by the applicant, and their component integers; and
(b)any claim that was not expressly articulated but which clearly emerged on the material before the Authority based on established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [60]-[61]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18].
The Authority was required to read, identify, understand and evaluate the claims made by the applicant: Plaintiff M1/2021 v Minister for Home Affairs (2022) 175 CLR 582; [2022] HCA 17 at [24].
Particulars (a) and (b): The applicant’s ‘adverse travel history’ and the Authority’s cumulative assessment of the applicant’s claims
It is convenient to address particulars (a) and (b) together, as particular (b) flows from particular (a).
At [22] of its reasons, the Authority addressed information provided by the applicant at his protection visa interview. The Authority said:
I also note that in the PV interview the applicant was asked to explain his statement in his final comments in support of his protection visa application that he could not leave Sri Lanka legally by passport. His response to this was basically because the police had confiscated his passport when he returned from a business trip from Singapore sometime in 2011. He said that because he brought back jewellery from Singapore for the family jewellery business the police arrested him and his father had to come and pay a bribe before he was released. The applicant did not claim that he was arrested and detained at the airport on this occasion due to any imputed links with the LTTE or for any imputed adverse political opinion.
There is no information before the Court to suggest that the applicant specifically raised this issue elsewhere in the materials that were before the Authority. No transcript of the applicant’s protection visa interview is before the Court and therefore there is no way for the Court to identify with greater specificity the context in which this issue was raised.
The applicant referred to the Authority’s reasons at [22] in conjunction with the following further information:
(a)the Authority’s acceptance at [51] of its reasons that during the arrival processing procedures at Colombo airport the applicant would undergo checks by the Department of Immigration and Emigration, the State Intelligence Service and a unit of the CID based at the airport;
(b)the Authority’s acceptance at [58] and [68] of its reasons that the applicant would be identified on arrival at the airport in Sri Lanka as having departed illegally and is likely to be charged with having committed an offence under the Immigrants and Emigrants Act, and that there is a possibility that the applicant may be detained on remand for up to a few days in prison if a Magistrate is not available;
(c)the applicant’s claim, set out in his written statement of claims given to the Department, that the Sri Lankan authorities have a ‘file’ on him; and
(d)the applicant’s statement to the Authority, in which he said:
The Delegate accepted that If I return to Sri Lanka, I would be considered a returned asylum seeker but overlooked how I would be treated during the interrogation. If I return to Sri Lanka I will be detained by the Sri Lankan authorities. I will be subject to interrogation and inhuman treatment. As I have a profile associated with the LTTE, no one will question the authorities to protect me. It would be dangerous for my family to come looking for me or try to release me. The Delegate failed to understand my life will be in danger during the detention period. My fear is made worse after hearing about the harassment faced by the recent failed asylum seeker arrivals to Sri Lanka from Australia. …
In his written submissions to the Court, the applicant submitted that there was squarely raised before the Authority a question of whether the applicant may have some additional risk of suffering relevant harm because of his already known adverse travel history in Sri Lanka and that the Authority did not consider whether the fact that the applicant has an adverse travel history in and of itself may cause him not to be granted bail on his return to Sri Lanka, as the Authority stated would be available for him. The applicant submitted that the Authority failed to consider whether his adverse travel history may cause him to be remanded in the unsanitary and overcrowded conditions which it found existed in Sri Lankan prisons for longer than a period of several days, which could amount to serious harm. In his oral submissions, Counsel for the applicant submitted that the Authority failed to consider what might flow from the fact that investigations conducted at the airport would be investigations into a man whose passport had been confiscated upon a previous return to the country.
The applicant submitted that the Authority’s cumulative assessment of his claims did not deal with the possibility that, when considered cumulatively, and including the detention and confiscation of the applicant’s passport and his release only on payment of a bribe, the risks to the applicant might affect his risk of suffering relevant harm.
The Minister submitted that the Authority carefully and fully considered the claims advanced by the applicant, including in relation to his claim advanced at the protection visa interview that the police confiscated his passport in 2011 when he returned from a business trip to Singapore, which the applicant claimed was for bringing back jewellery for the family jewellery business. This claim was articulated only one time and only to the extent that it was an explanation as to why he was unable to leave Sri Lanka legally by passport. The Authority considered the claim to this extent. The Minister further submitted that country information relied on by the Authority was to the effect that no returnee who is merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally and that when a person pleads guilty, they will be fined and free to go and when a person pleads not guilty, they are immediately granted bail. The Minister submitted that there was no country information which suggested that a person who had previously had their passport confiscated or who had an adverse travel history as claimed by the applicant would be denied bail or given a custodial sentence instead of a fine. The Minister submitted that the applicant’s submission at the protection visa interview was either subsumed in findings of greater generality or implicitly rejected by the Authority’s reasoning that accepted the country information but not as it applied to the applicant’s particular circumstances and claims. The Minister submitted that the applicant’s submission that the Authority did not consider whether the applicant had an adverse travel history which in and of itself may cause him not to be granted bail must be rejected.
The Minister submitted that the applicant’s submissions were, in truth, seeking to recast the claim made to the Authority. The Authority was not required to consider the applicant’s adverse travel history in a ‘cumulative manner’ with the rest of his claims. The Minister submitted that the requirement to consider the integers of an applicant’s claim is a requirement to consider the different basis for the persecution alleged and not the individual, and potentially disparate at manifestations of such persecution. The Minister submitted that the ‘cumulative’ submission is no more than a different manifestation of the persecution as claimed by the applicant before the Authority. The Minister submitted that there was no claim that tolerably arose on the materials before the Authority that the applicant would be harmed by reason of being at increased risk as a result of his passport being confiscated in 2001 and that, in any event, such a claim would be subsumed in findings of greater generality that the applicant did not face a real chance of serious harm because he had no real links to the LTTE and was not of interest to the authorities. The Minister also submitted that no claim tolerably arose on the materials that the adverse travel history may cause remand in unsanitary and overcrowded conditions of prisons amounting to more serious harm, and that, in any event, this was already subsumed in the findings about custodial sentences, bail and release.
I largely accept the Minister’s submissions in relation to particulars (a) and (b). I do not accept that the Authority was required to consider the submission advanced by the applicant in any greater detail, or in any context, other than it did. The Authority considered the submission in the context that it was raised by the applicant, noting that the applicant did not claim that his arrest and detention at the airport were for any reason associated with his claims to have imputed links to the LTTE or for any imputed political opinion.
The applicant made no express claim that he would face any elevated risk of harm upon his return to Sri Lanka as a result of his previous arrest or because his passport was confiscated. It appears that the only relevance of the submission was as an explanation as to why he could not depart Sri Lanka on his own passport. The claims from the applicant’s written statements to the Department and the Authority that Counsel for the applicant identified in support of these particulars do not address or relate in any way to the applicant’s passport having been confiscated or any issues that the applicant faced upon his last return to Sri Lanka. Those claims instead focus on the applicant’s claim that he would face harm on account of an imputed LTTE profile.
The applicant has not identified any country information before the Authority to suggest that any person whose passport had been previously confiscated would face any elevated risk of harm during the processes upon return to Sri Lanka. The Authority noted that the investigative process upon return to the airport is to confirm the person’s identity and to ascertain whether they are trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. The Authority found at [51] that there was no evidence that the applicant had any outstanding criminal matters or that he was trying to conceal his identity due to any criminal or terrorist background or trying to avoid any outstanding court orders or warrants. In relation to the procedures the applicant may face for breaching the Immigrants and Emigrants Act, the Authority observed at [56]-[57] of its reasons that the country information suggested that no returnee who is merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally and that there was no information before it to indicate that the applicant was involved in organising or facilitating people smuggling or that he was other than an ordinary passenger on such a venture.
Taking into account the way in which the applicant articulated his claims and the whole of the information that was before the Authority, there was no obligation on the Authority to expressly consider whether the applicant may be denied bail or face a longer period in prison, or otherwise face an elevated risk of harm, as a result of previously having his passport confiscated or for any adverse travel history that he claimed to have. I accept the Minister’s submission that those claims did not clearly emerge on the materials before the Authority. The Authority considered the applicant’s submission to the extent that it was required to be considered of itself and the cumulative impact of the submission with the other claims before the Authority did not amount to a ‘claim’ that clearly emerged on the material before the Authority based on established facts.
Particular (c): Country information in relation to torture in Sri Lanka
The applicant submitted that the Authority did not consider all the material and information before it in relation to the prevalence and culture of torture and abuse in Sri Lanka and, because of this, the Authority’s consideration of whether the applicant may suffer torture or other relevant harm during any period he may be detained on return to Sri Lanka was flawed.
In addition to noting the country information relied on by the delegate, the applicant relied heavily on information in the DFAT report. The applicant emphasised the following parts of the DFAT report:
TORTURE
…
4.12A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).
4.13These reports include:
•International Truth and Justice Project’s (ITJP) 2016 report, Silenced: Survivors of torture and sexual violence in 2015
•ITJP’s 2015 report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015
•Freedom from Torture’s (FFT) 2015 report, Tainted Peace: Torture in Sri Lanka since May 2009
•Amnesty International’s 2012 report, Locked Away: Sri Lanka’s Security Detainees.
The 2016 ITJP report cited 20 cases of torture in 2015. FFT’s report cited eight torture cases in 2015. DFAT notes that verification of the evidence presented in these reports is complicated by the fact that many allegations are made anonymously, often to third parties, including by individuals who are outside Sri Lanka, and in some cases individuals who are in the process of seeking asylum. However, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.
…
4.15DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
4.16In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.
4.17Evidence obtained through torture is generally inadmissible in courts in Sri Lanka. However, for suspects held under the Prevention of Terrorism Act, all confessions obtained by officers at or above the rank of Assistant Superintendent of Police are admissible in court. Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights. Disciplinary action can be taken when complaints are made against the police or prison officers, but there have been few recent examples of this.
4.18DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
4.19DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.
4.20Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.
Torture and mistreatment of returnees
4.21DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
4.22Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.
The applicant submitted that this country information shows an ‘entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences’. The applicant acknowledged that the Authority referred to some parts of the DFAT report but submitted that the Authority did not consider the breadth and depth of the information, and overlooked relevant parts of the DFAT report in its consideration of the risk of harm to the applicant while briefly being held in detention or prison and being questioned and interrogated on return to Sri Lanka as an illegal emigrant or failed asylum seeker. The applicant submitted that the Authority made only passing reference to some reports of torture of returnees being chiefly about those with the LTTE links and to DFAT’s assessment of the risk of torture being low. The applicant submitted that the Authority therefore did not consider relevant material.
The Minister submitted that the Authority appropriately and comprehensively considered the country information before it and engaged in an intellectual process of reasoning as to how the country information applied to the claims advanced by the applicant. The Minister submitted that in doing so, the Authority found that the country information raised matters in relation to torture or abuse of returnees but found that it indicated that the majority of victims had actual connection or stronger link to separatist activities, which the applicant did not have. The Minister submitted that the Authority’s interpretation of the country information was open to it and that the ground is really seeking merits review.
I accept the Minister’s submissions. The Authority in its reasons had extensive regard to country information, including in relation to torture.
The Authority referred at [40]-[41] of its reasons to country information in relation to the security situation in Sri Lanka and found that the country information in the referred material indicated a ‘marked improvement’ in the security and humanitarian situation for Tamils in Sri Lanka since January 2015. In relation to torture, the Authority said at [40]:
Torture, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored and that, on [DFAT’s] assessment, the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
In relation to the risk of harm to the applicant as a returning asylum seeker who departed Sri Lanka illegally, the Authority said at [48]-[49] (emphasis added, footnotes omitted):
48.I accept that if the applicant is returned to Sri Lanka he may be identified as a person who has sought asylum in Australia and who has departed Sri Lanka illegally. However, having regard to the country information in the referred material and in particular in the DFAT report, I am not satisfied that there is a real chance the applicant would be harmed for this reason. 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).
49.I have considered country information in the referred material about the arbitrary nature of detentions occurring, of human rights abuses during detention and interrogation, and of the impunity of those responsible, and note that there have been credible reports of mistreatment and torture. In nearly all cases there were accusations of specific LTTE involvement or links and in respect of the most recent Freedom From Torture report, the victims had, in the majority of cases, an actual or suspected LTTE connection or links to separatist activities. I have found that the applicant does not have any real or perceived LTTE links or involvements in any separatist activities. Further, I have found that he was not a person of interest to Sri Lanka authorities for any reason when he left the country, noting also that he had previously left the country and returned by passport, and did not have any issues raised in relation to any LTTE profile. Noting also the above DFAT country information in relation to the low risk of torture or mistreatment for the majority of returnees, I am not satisfied that there is a real chance the applicant would be harmed by the Sri Lankan authorities as a returning asylum seeker.
The observations that the Authority made based on country information are accurate having regard to the information in the DFAT report, and the findings that the Authority made based on country information were open to it. The Authority acknowledged that there had been credible reports of torture and mistreatment but, having regard to the applicant’s profile, was not satisfied that the applicant was a person who faced a real chance of serious harm from torture. The Authority did not misconstrue the country information in any way and it appears from the range of paragraphs of the DFAT report cited in the Authority decision that the Authority had regard to all relevant parts of the DFAT report. The failure of the Authority to specifically refer to some of the paragraphs identified by the applicant does not indicate that the Authority did not have regard to those particular paragraphs. In assessing the risk of harm to the applicant, the choice of the country information relied on and the weight to be given to that country information was a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
The applicant has not established that the Authority failed to consider relevant country information in relation to torture.
Conclusion in relation to ground 1
Ground 1 is not established.
GROUND 2: DID THE AUTHORITY FAIL TO INTERPRET OR APPLY THE LAW?
GROUND 3: DID THE AUTHORITY MAKE A FINDING WHICH WAS LEGALLY UNREASONABLE OR WITHOUT LOGICALLY PROBATIVE MATERIAL?
It is convenient to address grounds 2 and 3 together. The assertion in ground 2 is that the Authority erred in interpreting or applying the law and the assertion of error in ground 3 is that the Authority was legally unreasonable or made findings without a logically probative basis. The matters raised in the particulars for each ground are the same.
Ground 2 reads:
The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a)The Authority erred in interpreting or applying section 473FB(5) of the Migration Act 1958 (C’th) (“the Act”), in refusing to consider the Police message Form. (CB 182; CB 200, [11]) The Authority acting legally reasonably ought not to have refused to consider this document given that the Applicant had explained why he had not submitted an English translation. (CB 172-173, [12]-[13])
(b)In the alternative to Particular (a) to this Ground, the Authority erred in interpreting or applying section 473DC of the Act, in not seeking new information at interview or otherwise about the Police message Form. (CB 182) The Authority acting legally reasonably ought not to have refused to consider this document without having sought new information about it, including what it said, and why the Applicant had not submitted an English translation.
(c)The Authority accepted that the Applicant had been a “low-level supporter of the TNA”. (CB 203, [24]) It therefore erred in interpreting or applying section 473DC of the Act, in not seeking new information at interview about whether the Applicant continued to support the TNA after he may have ceased being a member of his sporting club, (CB 204, [27]) when this squarely arose from the Applicant’s claims about his political opinion (CB 90-91, [12], [17]; CB 172-173, [12], [14]), and the question whether he had stopped supporting the TNA was not an issue for the delegate. (CB 147-148)
(d)The Authority had reports by the UN and other sources of a history and culture of torture by police and other forces, and of risks of harm to people in detention or under the control of the police or other authorities of Sri Lanka. The Authority’s conclusions that the Applicant was not a person owed protection under sections 36(2)(a) and 36(2)(aa) show that it erred in interpreting or applying the terms “well-founded fear of persecution” in section 5H(1)(a) of the Act, “real chance” in section 5J(1)(b) of the Act, and “real risk” of significant harm within the meaning of section 36(2)(aa) despite:
(i)the evidence of incidents of torture in Sri Lanka, including in the 2017 DFAT report on Sri Lanka to which the Authority referred and on which it relied;
(ii)the evidence of an entrenched culture of torture in Sri Lanka;
(iii)the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka;
(iv)the findings of the Authority which accepted important claims by the Applicant, including that:
•the Applicant had been a low-level supporter of the TNA (CB 203, [24]);
•the Applicant had in 2012 been detained and questioned by police on suspicion of a criminal charge, and had been assaulted on that occasion (CB 204, [26]);
(v)the investigation and detention of the Applicant which the Authority found would or may occur were he to return to Sri Lanka. (CB 209, [54]; CB 210, [58]; CB 211, [68])
In these circumstances it was not reasonably open to the Authority not to be satisfied that there was a real chance of relevant harm to the Applicant, had it correctly applied the terms of sections 5H(1)(a), 5J(1)(b), 36(2)(a) and 36(2)(aa).
Ground 3 reads:
The Authority fell into jurisdictional error in that it was legally unreasonable or made findings without logically probative material.
Particulars
(a) By reason of the matters set out in the particulars to Ground 2, the Authority was legally unreasonable in exercising its powers under the Act, and had no logically probative basis for findings it made and for the decision based on those findings.
Particular (a): Whether the Authority erred in interpreting or applying s 473FB(5) of the Migration Act or acted unreasonably
Section 473FB of the Migration Act allows the President to issue practice directions. The section provides:
(1)The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:
(a)the operations of the Immigration Assessment Authority; and
(b)the conduct of reviews by the Authority.
(2)Without limiting subsection (1), the directions may:
(a)relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
(b)set out procedures to be followed by persons giving new information to the Authority in writing or at interview.
(3)The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non‑compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.
(4)If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.
(5)The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
The Authority provided to the applicant a copy of its Practice Direction made pursuant to s 473FB. Paragraph 27 of the Practice Direction states:
All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.
The applicant provided a submission to the Authority on 5 June 2017 and attached additional documents, some of which were not in English. In the covering email, the applicant’s representative said that they would ‘submit the translations of the documents as soon as our client provide a copy to us’. English translations of some of the documents were provided on 19 and 21 June 2017. The applicant did not provide an English translation of a document described in his statement as ‘Article 5 – Message Form’.
The Authority said at [10]-[11] of its reasons:
10.The further document attached to the IAA submission and described as “Article 5-Message Form” is an untranslated document and appears to be dated 1 November 2016. The IAA submission does not explain what the document states. In that submission the applicant only states that the police met his father and handed him a Message Form on 1 November 2016, which he maintains is evidence that the authorities are still interested in him. Further in that submission, the applicant claims that the Message form is from the Terrorism Investigation Department (TID), which the Sri Lankan police gave to his father in their jewellery shop.
11.The applicant’s explanation in the IAA submission as to why this document and a translation of it was not previously provided is that he fears that his documents were not submitted to the department by his lawyer. He claims that his family had sent him a scanned copy of the letter, which he provided to his previous lawyer who promised to translate it and submit it to the Department, however on his last appointment with that lawyer he realised she may not have submitted the documents. The applicant does not explain when he had his last appointment with his previous lawyer or why, having made that realisation, he did not instruct his new representative to provide a translation of that document. The applicant was on notice of the importance of providing a translated document and his representative had indicated in the email enclosing the IAA submission and the supporting documents that translations of the documents will be submitted as soon as their client provides a copy. However, the applicant has not provided a translation of this document. Practice Direction 1, issued under s. 473FB(1) of the Act, states that all documents that are not in English should be translated into English. In all the circumstances, and noting s.473FB(5) of the Act, I have decided not to accept this document.
The applicant submitted that the Authority erred in interpreting or applying s 473FB(5) of the Migration Act in refusing to consider the Message Form. Counsel for the applicant submitted that the language of s 473FB(5) did not compel the Authority to reject a document that did not conform with the Practice Direction and instead gave the Authority a discretion, which it was required to exercise reasonably. The applicant submitted that, acting legally reasonably, the Authority ought not to have refused to consider the Message Form given that the applicant had explained why he had not submitted an English translation. That explanation, as described in the applicant’s submissions to the Court, was that he had trusted his previous representative’s promise to get and submit a translation.
I do not consider that to be a comprehensive summary of the explanation given by the applicant in his submission to the Authority, which reads:
During my PV interview, I stated that I would be providing some documents to my lawyer, who would then submit to the department. I fear my documents were not submitted to the department by my lawyer. I have attached a Message form from Terrorism Investigation Department (TID). This was given to my father from the Sri Lankan Police in our jewellery shop. My family sent me a scan copy, which I provided to my previous lawyer. The lawyer promised to translate it and submit to the department. During my last appointment with the lawyer, I realise she may have not submitted. Therefore, I would like to submit the document again. I will provide a translation of this document, as soon as I get translated by a NAATI accredited translator. …
In his oral submissions, Counsel for the applicant also submitted that a document that was, on its face, sufficiently grave to have come from the Terrorist Investigation Division was something which the Authority legally and acting reasonably ought not to have excluded in exercising its discretion under s 473FB(5).
The Minister submitted that the Authority did not make any error in interpreting or applying s 473FB(5). The Minister submitted that the Authority noted the applicant’s submissions did not explain what the document states and the requirement in the Practice Direction was that a document not in English should be translated into English. The Minister submitted that the Authority applied the subsection correctly as the Authority is not required to consider the documents that did not comply with the Practice Direction.
I do not accept that the Authority misinterpreted or misapplied s 473FB(5) or that it exercised its discretion under that subsection unreasonably. The explanation offered by the applicant for not providing the document or a translation to the delegate appeared to be for the purposes of the applicant trying to satisfy the requirements of s 473DD of the Migration Act in relation to the Message Form. It does not explain why the applicant did not provide a translation to the Authority. Rather, the applicant in the submission, and his representative in the covering email to the Authority, expressly stated that they would provide a translation. The Authority decision was delivered some five months after the applicant indicated that he would provide a translation and did not. The Authority reasons expressly acknowledge and consider what the applicant’s submission does and does not state. In particular, the Authority noted that the applicant did not explain why he did not instruct his new lawyer to obtain a translation and provide a translation of the document and noted that the submission did not explain what the document actually said. The Authority noted that the applicant was on notice of the need to provide translations, having been given a copy of the Practice Direction.
The Authority gave a plausible justification for not accepting the Message Form under s 473FB(5) in circumstances where an English translation was not provided as required by the Practice Direction.
Particular (b): Whether the Authority erred in interpreting or applying s 473DC of the Migration Act or unreasonably did not request new information from the applicant about the Message Form
Section 473DC of the Migration Act allows the Authority to get new information that was not before the Minister when the Minister made the decision under s 65 and that the Authority considers may be relevant. The Authority may invite a person to give information in writing or at an interview, but it does not have a duty to get, request or accept any new information whether requested to do so by a referred applicant or some other person or in any other circumstances. The power conferred by s 473DC is a discretionary power which must be exercised reasonably: 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].
The applicant submitted, as an alternative to particular (a), that the Authority erred in interpreting or applying s 473DC of the Migration Act in not seeking new information at an interview or otherwise about the Message Form from the Sri Lankan Police. The applicant submitted that the Authority, acting reasonably, ought not to have refused to consider the document without having sought new information about it, including what it said, and why the applicant had not submitted an English translation. It was potentially critical corroborative evidence of recent adverse interest in the applicant by the Sri Lankan authorities and may therefore have changed the Authority’s determination of the risk to the applicant.
In his oral submissions, Counsel for the applicant submitted that the Authority erred in not seeking new information at an interview or otherwise about the Message Form and could have very simply asked whether the applicant was going to give a translation or why he had not given a translation.
The Minister submitted that the alternative submission should be rejected because it was open to the Authority to apply s 473FB(5) of the Migration Act in the manner it did in circumstances where the document was not translated, the applicant had been represented and where the applicant’s explanation of what the document conveyed did not indicate there was a critical fact in that document, the existence of which was easily ascertained. There was no information gap of the type discussed in authorities such as ABT17 that required the Authority to consider inviting the applicant to give new information about the document.
The applicant has not established that the Authority acted unreasonably in the circumstances of this case in not exercising its discretion in s 473DC to get new information. While I accept that it would have been open to the Authority to approach the applicant and ask whether he intended to provide a translation, a failure to do so does not amount to jurisdictional error unless it was legally unreasonable. I also accept that there may be some cases where the failure to invite an applicant to provide a translation of a document that is not in English, or to provide some other document that the Authority was on notice that the applicant intended to provide may be unreasonable: see, for example, Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46; BMH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1062.
However, each case must be assessed on its facts. The matters referred to by the applicant to support his submission that the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act are that the document is potentially corroborative of his claims and the applicant did not provide a translation. It is evident from the applicant’s submission to the Authority that he was aware or believed that an English translation had not been provided. It is also apparent from the material before the Authority that the applicant, as well as having been given a copy of the Practice Direction advising the English translations must be provided, had actual knowledge of the requirement because he indicated to the Authority that he was going to provide an English translation. The Authority waited some five months after this representation was made by the applicant before publishing its decision. As noted above, the Authority had regard to the absence of any description provided by the applicant of what was contained in the document and considered whether he had proffered any explanation for not providing a translation.
While other Authority members may have proceeded in a different manner, the applicant has not established that the Authority acted unreasonably, taking into account the high threshold for establishing legal unreasonableness, which has been described as stringent: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [113].
Particular (c): Whether the Authority erred in its interpretation and application of s 473DC of the Migration Act, or acted unreasonably, in not seeking new information from the applicant about whether he continued to support the TNA after he ceased being a member of a sporting club
The applicant claimed that he was involved in a sports club in his village and that members of the sports club supported the election campaign of the TNA because the TNA had undertaken to help the local sports clubs if elected to power. The applicant claimed that he would face harm on account of his support of the TNA.
The Authority made factual findings relating to this claim at [23] and [24] of its reasons, where it said:
23.Having regard to his consistent account, I accept that the applicant was a member of … (the sports club) in his village from 2009 until 2011 and that he carried out the role of treasurer for the club during this time. I also accept that in response to a request made to the sports club by the Tamil National Alliance Party (TNA) for assistance with their election campaigning, the applicant along with other members of the club, engaged in volunteer work for the TNA. I consider it plausible that the club members agreed to engage in volunteer work to assist the TNA because the TNA had undertaken to assist the sports club in its objective to help people in need. In this regard, I accept the applicant’s evidence at the PV interview that the club was not politically aligned with the TNA.
24.I am satisfied that it was only as a result of his membership with the sports club that the applicant had any association with the TNA, having volunteered with other club members to assist with the TNA election campaign in his home village. To that extent, I accept that he was a low-level supporter of the TNA. There is no evidence before me that the applicant otherwise had any political affiliation with the TNA itself, or that he was an actual member of the TNA or that he has ever run for elected office or held any leadership position in the TNA. There is no evidence that the applicant had been a long term TNA supporter or that he has continued to support the TNA.
Part of the Authority’s reasons for rejecting the applicant’s claim to have received a threatening call from an unidentified caller warning him to cease supporting the TNA about two months after the July 2012 election was that the applicant had said in his evidence that he had been a member of the sports club from 2009 to 2011. The Authority inferred that, on that account, any election campaigning work that the applicant provided would have ceased well before the July 2012 election and there was no evidence before it that the applicant continued to be a TNA supporter thereafter.
The applicant submitted that the Authority erred in interpreting or applying s 473DC of the Migration Act or acted unreasonably in not seeking new information at an interview about whether the applicant continued to support the TNA after he ceased being a member of his sporting club, when this squarely arose from the applicant’s claim about his political opinion. The applicant submitted that the question of whether he had stopped supporting the TNA was not an issue considered by the delegate who proceeded on the basis that the applicant claimed to be a long-time supporter of the TNA.
In his reply submissions, Counsel for the applicant submitted that the Authority misinterpreted the applicant’s evidence and that his evidence was that he was treasurer of the sports club from 2009 to 2011, not that this was the period of his membership. The applicant has not established, on the evidence before the Court, that the Authority misinterpreted the applicant’s evidence in this way. The description of the relevant claim is more detailed in the delegate’s decision and the Authority’s decision than it is in the written claims of the applicant. This suggests that more detail was provided by the applicant in the protection visa interview, such as the identified period of 2009 to 2011 and the applicant’s role as treasurer. There is no transcript before the Court of what the applicant actually said at the protection visa interview, and it is therefore not possible for me to determine that the Authority misinterpreted the applicant’s claim. Counsel for the applicant relied on the delegate’s description that ‘The applicant claimed that he was the treasurer of [the sports club] between 2009 and 2011’. That, on its own, does not assist the applicant’s overall submission, which is that the applicant’s support for the TNA continued after he was treasurer, because it overlooks the opening words of the following sentence, which indicate that it was ‘during this time’ that the club was approached by the TNA to assist with campaigning.
When the Authority’s reasons and the evidence before the Authority (insofar as that has been provided to the Court) are considered together, I am satisfied that it was not unreasonable for the Authority not to invite the applicant to give new information about whether he continued to be a supporter of the TNA after he ceased to be a member of the sports club. The Authority considered the applicant’s evidence as it had been provided. The applicant presented the low-level support that he provided for the TNA in the context of his membership of the sporting club and it was open to the Authority to have regard to the context in which the claims were presented. This was not a new issue that arose before the Authority, but rather a finding that was made by the Authority having regard to the same evidence that was considered by the delegate. It was open to the Authority to form a different view to the delegate of the evidence before it and in the circumstances of this case there was no obligation on the Authority to invite the applicant to comment on a proposed different finding: see, for example, DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [72].
In any event, the Authority proceeded to have regard to whether the applicant would face harm on account of having been a low-level supporter of the TNA because of his membership with the sports club and found that he was not of any interest to the Sri Lankan authorities or any other person for these reasons when he departed Sri Lanka. The Authority considered whether the applicant would face harm as a person who had provided low-level support to the TNA taking into account country information, which suggested there was now support for the TNA in Sri Lankan politics. In so doing, the Authority considered whether the applicant would face a relevant chance of harm based on his claims as he articulated them and did not need additional information from the applicant to do this.
Particular (d): Whether the Authority erred in interpreting and applying the term ‘well-founded fear of persecution’ in s 5H(1)(a) of the Migration Act or the ‘real chance’ or ‘real risk’ tests or made findings that lacked a logically probative basis
The applicant submitted that the Authority had before it reports by the United Nations and other sources that showed a history and culture of torture in Sri Lanka and a risk of harm to people in detention or under the control of police or other authorities in Sri Lanka. The applicant submitted that the Authority’s conclusion that he did not engage Australia’s protection obligations under s 36(2)(a) and 36(2)(aa) of the Migration Act demonstrated that it erred in applying or interpreting the terms ‘well-founded fear of persecution’ in s 5H(1)(a) of the Migration Act, ‘real chance’ in s 5J(1)(b) of the Migration Act and ‘real risk of significant harm’ within the meaning of s 36(2)(aa) of the Migration Act. The applicant submitted that it was not reasonably open to the Authority not to be satisfied that there was a real chance of relevant harm to the applicant, had it properly applied those terms, having regard to:
(a)evidence of incidents of torture in Sri Lanka;
(b)evidence of an entrenched culture of torture in Sri Lanka;
(c)evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka; and
(d)the findings of the Authority accepting important claims by the applicant, including that he had been a low-level supporter of the TNA, that he had in 2012 been detained and questioned by police on suspicion of a criminal charge and had been assaulted on that occasion, and the investigation and detention of the applicant which may occur were he to return to Sri Lanka.
The Minister submitted that the applicant is seeking merits review by the Court.
I do not accept that the Authority misapplied or misinterpreted the relevant legislation or tests, or that it made a decision that was illogical or irrational in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131], [135].
The applicant’s submission is essentially that the test in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) requires that a ‘real’ chance is one that it not remote, and can be less than 50%, and there was evidence before the Authority that showed that the chance or risk of harm to the applicant could not be ruled out on the evidence before the Authority.
On a fair reading of the Authority’s reasons, there is nothing to indicate that the Authority misunderstood or misapplied the relevant legislation, and in particular, the words, ‘real chance’ and ‘real risk’. The Authority correctly summarised the relevant legislation in its reasons. The Authority gave carefully considered reasons explaining why it did not accept that the applicant would face the requisite chance or risk of harm and, as discussed in the context of ground 1, its findings based on country information were open to it on the evidence before it. There is nothing to indicate that the Authority applied any more stringent standard than that identified in Chan and it acknowledged that the real risk and real chance tests are the same standard.
Conclusion in relation to grounds 2 and 3
Grounds 2 and 3 are not established.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error and the application for judicial review is therefore dismissed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 20 September 2024
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