FRT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 173
•29 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FRT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 173
File number(s): MLG 2827 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 29 February 2024 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority misapplied or unreasonably failed to exercise the power in s 473DD of the Migration Act 1958 (Cth) to consider new information – whether Authority confined itself to an assessment of credibility of new information as required by s 473DD(b)(ii) – whether Authority acted unreasonably in failing to get country information that was not before the delegate through the exercise of s 473DC(1) of the Act – whether Authority failed to consider all relevant country information concerning conditions for returnees in Sri Lanka – whether Authority failed to consider claim of future political activity – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 473DC, 473DD. Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34.
AXQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 195
CDW18 v Minister for Home Affairs [2019] FCA 270
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submissions: 11 December 2023 Date of hearing: 11 December 2023 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Mr Solomon-Bridge Solicitor for the Respondents: Australian Government Solicitor. ORDERS
MLG2827 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
29 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for judicial review filed on 21 December 2017 and amended on 13 November 2023, be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
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 SYMONS:
INTRODUCTION
By an amended application filed on 13 November 2023, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 5 December 2017. The Authority confirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (protection visa). The Minister opposes the application. The Authority enters a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a Sri Lankan citizen of Tamil ethnicity who arrived from Sri Lanka as an unauthorised maritime arrival on 21 October 2012.
On 9 March 2017 the applicant made a valid application for the protection visa. The applicant’s claims for protection were set out in the visa application and supporting statement, and can be summarised as follows (Court Book (CB) 70-71):
·In 2012, the applicant’s village was terrorised by Sri Lankan security forces disguised as “grease men”. The applicant was forced to defend his village along with his father and others.
·The applicant was terrorised and threatened by security officials because he had provided support for the Tamil National Alliance (the TNA) at the 2012 election.
·The applicant was confronted, threatened and assaulted by “some strangers who were wearing helmets on their head” warning him against continuing his support of the TNA.
·The applicant went into hiding at his aunt’s house, and subsequently came to Australia.
·The applicant apprehends harm as a returning failed asylum seeker and illegal emigrant and a person of perceived wealth by reason of having spent time in a Western country.
On 22 June 2017 the applicant attended an interview with a delegate of the Minister in support of his application for the protection visa (SHEV interview).
On 10 July 2017, a delegate of the Minister refused the applicant’s application for the protection visa (CB 218).
Decision of the Authority
On 13 July 2017, the applicant’s matter was referred to the Authority for review under Part 7AA of the Act.
On 27 July 2017, the applicant’s representative wrote to the Authority and requested additional time to make a submission as well as providing a copy of the applicant’s father’s death certificate (CB 247-252). The Authority gave the applicant an extension of time until 17 August 2017 (CB 253). On this date, the applicant’s representative sent the Authority a submission prepared by the applicant and four articles containing country information (CB 255-258).
On 5 December 2017, the Authority affirmed the delegate’s decision and produced a written statement of decision and reasons (Reasons) (CB 273-288).
The Authority’s treatment of the applicant’s statement and the items of country information he provided is the subject of discussion below, in the context of the applicant’s grounds of judicial review.
As far as the applicant’s protection claims were concerned, the Authority accepted that the applicant had supported the TNA election campaign in 2012 and engaged in low level electioneering activities. The Authority accepted that the applicant had been subjected to threats and a single beating as a result of his support for the TNA in 2012 (Reasons, [32]). However, the Authority did not consider the applicant’s claims about ongoing interest in him from Sri Lankan authorities after his departure for Australia were credible based on the applicant’s (low-level) political profile (Reasons, [33]).
The Authority was not satisfied that the applicant faced a real risk of harm arising from his perceived wealth or from his claim of asylum in Australia (Reasons, [42]). While the Authority accepted that if returned to Sri Lanka the applicant would likely face charges arising from breaches of the Immigrants and Emigrants Act, it was not satisfied that any questioning, brief detention or the imposition of a fine for breaches of Sri Lankan immigration law arising from the applicant’s illegal departure would amount to serious harm or that the treatment would amount to persecution (Reasons, [44]-[45]).
The Authority was not satisfied that any processes or penalties applied to the applicant upon return would amount to significant harm (Reasons, [50]).
The Authority found that the applicant did not meet s 36(2)(a) or s 36(2)(aa) of the Act.
JUDICIAL REVIEW APPLICATION
The applicant relies on an amended application and written submissions filed on 13 November 2023.
The Minister relies on written submissions filed on 1 December 2023.
At the hearing of the amended application on 11 December 2023 the applicant was represented by Mr Krohn of counsel and the Minister by Mr Solomon-Bridge of counsel.
The applicant’s challenge to the decision of the Authority
Although the applicant’s amended application identifies four grounds, the complaint that is central to each ground involves the failure of the Authority to take into account relevant considerations including, especially, country information and a submission that the applicant sought to place before the Authority for the first time and which the Authority was required to evaluate against s 473DD of the Migration Act 1958 (Cth) (the Act). The approach taken by the Authority is said to manifest in:
·Legal unreasonableness;
·Misapplication of s 473DD of the Act;
·Misapplication of s 473DC of the Act; and
·A denial of procedural fairness
The country information
The first items of information were news reports that the applicant requested the Authority to consider and which were provided to the Authority under cover of an email from his legal representative sent on 17 August 2017. The applicant identified four articles but described (for the purpose of his application for judicial review) two as “especially important”; the first article - “Tamils still at risk, UN Special Rapporteur warns international community”, published by the Refugee Council of Australia, dated 18 February 2017 (CB 263-265); the second article – “Torture by Sri Lankan police routine, says human rights lawyer”, published in the Guardian on 14 July 2017 (CB 260-262).
The applicant submitted that these articles were important because they contained references to a report by the UN Special Rapporteur on Torture that had been published on 25 January 2017 and which was therefore later in time to the DFAT Country Information Report Sri Lanka (2017 DFAT Report) which the Authority had made repeated reference to, and which was published on 24 January 2017.
The Authority dealt with this country information at [4]-[5] of its written statement as follows (CB 274):
4.Three of the news articles included in the submission were published prior to the delegate making the primary visa decision. One of these articles (Not ‘all is forgiven’ for asylum seekers returned to Sri Lanka) was before the delegate at the time of the primary decision and is not new information. The two remaining articles were not before the delegate at the time of the primary decision and are new information. These articles are publicly available and were published prior to the date of the primary decision. They concern Tamils and diaspora Tamils. The applicant submits that these articles reaffirm the current situation in Sri Lanka and his fear of return. Otherwise the applicant does not explain why the information is only being provided now, or why it may be considered credible personal information. I note that the applicant was represented before the Department of Immigration by the same representative who provided post interview submissions and country information. The applicant has not satisfied me that these articles could not have been provided to the Minister prior to the date the decision was made or that they are credible personal information which was not previously known and may have affected consideration of the applicant’s claims. Having regard to the circumstances as a whole, I am also not satisfied that any exceptional circumstances exist for me to consider this information. As such I am prevented from considering them.
5.The fourth news article was published after the date of the primary decision (‘Torture by Sri Lankan Police Routine, says human rights lawyer’) and I accept that it could not have been provided to the delegate prior to the decision, and as such s 473DD(b) is met. This article may also be described as general country information. It outlines the findings of a visit to Sri Lanka by a UN Special Rapporteur. The article does not relate to the applicant specifically or otherwise contain personal information about him. Nor does the article present information that is substantially different from previously known public country information that is before me. Having considered all the circumstances regarding the submission of this article and noting that the claims made in it were previously known and were canvassed in the literature before the delegate, I am not satisfied that exceptional circumstances exist for me to consider this information.
The information concerning the death of the applicant’s father
The second item of information was contained in a submission prepared by the applicant and sent to the Authority under cover of email from his legal representative on 17 August 2017. The submission (as to relevant part) said (applicant’s emphasis) (CB 255):
On the 07th of July 2017, my father committed suicide because he was depressed and distressed and traumatised that something life threatening might occur to me. On 28th June 2017, members of the CID had visited home in search of me and had inquired as to when I would return back to the country and had also threatened my father that they would kill me. They had also verbally abused my father and had tried to extort more money from him, which he informed me on the 06th July 2017. I was upset when I heard about the harassment my father was undergoing because of me but I was also helpless. I was worried and was wondering as to how I could help my family out of tis misery.
As my father did not have any money to give them, he had informed them that he cannot give them any money. On 06th July 2017, around 06.00 PM, members of the CID had once again visited my home and threatened my father that if they ever see me in the country, they would not hesitate to kill me. They had once again verbally abused me and my father got so upset and conveyed this message with distress to me over a phone call.
My father informed me that unknown persons wearing masks so as to not reveal their identity and members of the CID often visited home and threatened my father. He implored me to not return to Sri Lanka under any circumstance and when I told him that my Protection Visa application may be refused, he became distressed and wept after which he disconnected the phone call. I was shocked to receive a message from home the next day informing me that my father had passed away by committing suicide because of the mental agony he was undergoing due to threats by the visits of the CID members.
Before I could recover from the shock of losing my father, added to my despair, I received the decision refusing my application on 10th July 2017. My mental health has been greatly affected and I have visited my doctor and tried to obtain advice. Until now I have not even told my mother that my application has been refused as I do not know how she will take up this news if conveyed. I would like to inform the Review Authority that returning back to Sri Lanka will be a threat to my life and wellbeing.
The Authority dealt with this information at [6]-[13] of its written statement as follows (CB 274-276):
6.The submission reports that on 7 July 2017 the applicant’s father committed suicide. This is a new claim put forward by the applicant (he had previously reported his father’s death to the delegate but not as a suicide or with the details now claimed). The applicant claims that his father’s suicide was prompted by a combination of factors. Firstly that officers from the Sri Lankan Police (SLP) Criminal Investigation Division (CID), in company with unknown masked persons, had often visited the applicant’s father’s home in the years since the applicant’s departure from Sri Lanka. Recently the CID had visited his father’s home on 28 June 2017 in search of the applicant and during this visit they abused the applicant’s father and extorted money from him. They also threatened to kill the applicant if he returned to Sri Lanka. On 6th July the CID visited the applicant’s father again and reiterated their earlier threat to kill the applicant if he ever returned to Sri Lanka.
7.The submission reports that on 7 July 2017 the applicant’s father committed suicide. This is a new claim put forward by the applicant (he had previously reported his father’s death to the delegate but not as a suicide or with the details now claimed). The applicant claims that his father’s suicide was prompted by a combination of factors. Firstly that officers from the Sri Lankan Police (SLP) Criminal Investigation Division (CID), in company with unknown masked persons, had often visited the applicant’s father’s home in the years since the applicant’s departure from Sri Lanka. Recently the CID had visited his father’s home on 28 June 2017 in search of the applicant and during this visit they abused the applicant’s father and extorted money from him. They also threatened to kill the applicant if he returned to Sri Lanka. On 6th July the CID visited the applicant’s father again and reiterated their earlier threat to kill the applicant if he ever returned to Sri Lanka.
8.The applicant states that on the evening of 6 July, the applicant held a phone conversation with his father. During the conversation, the applicant’s father recounted these events to the applicant, and informed him that he should never return to Sri Lanka due to the risk to his life. The applicant advised his father that he did not intend to return, but there was a possibility that his claim for a protection visa in Australia would be refused, and if so he would be returned to Sri Lanka against his will. The applicant claims that when he advised his father of this possibility, he became distressed and agitated and abruptly disconnected the phone call. The next day the applicant received a notification that his father had committed suicide.
9.As evidence of these claims the applicant has provided a copy of a Sri Lankan death certificate (and a certified English translation). The document records that the applicant’s father died on 7 July 2017, and that the cause of death was suicide. The applicant has not previously provided any evidence that the circumstances of his father’s death occurred for the reasons he describes in the submission. It is new information.
10.I note that the applicant’s representative had informed the delegate of the death in a submission to the Department made in the afternoon of 7 July 2017 (prior to the primary decision), although it did not contain any information about the nature of death (suicide), or the reasons the applicant now says led to his death.
11.The applicant has claimed that the suicide was linked harassment relating to the applicant. The claim that the CID officers accompanied by other unknown person visited the applicant’s family home to talk to his father in Sri Lanka on 28 June 2017 and 6 July 2017 and did so often is a new claim and had not previously been articulated by the applicant. The claim that the CID officers had made threats against the applicant is also a new claim.
12.I am satisfied that although the father’s death occurred before the delegate’s decision, he may not have been in possession of the death certificate until later and that he could not have provided the document to the delegate. I am also satisfied that the information about the manner of the father’s death (suicide) is credible. However, I find the applicant’s claims about the newly disclosed visits unconvincing. The applicant did not mention these visits to Australian authorities at any time prior to his August 2017 submission to the IAA despite being given the opportunity to do so. The applicant has advised Australian authorities that he maintains regular contact with his family. I note that in his protection visa interview the applicant stated that his father had been subjected to some police monitoring around 2006 and 2007 but did not make any claims that this monitoring was ongoing and the claim was not discussed further by the applicant. Given that the applicant’s submission claims that these visits by the CID happened often and that during the visits his father was abused and received threats I do not find it credible that the applicant would not have known about these visits prior to the date of his submission. I note that the two most recent visits claimed by the applicant occurred after the date of his protection visa interview (22 June 2017). But given his claim that these visits were made often (i.e. not just on 28 June & 6 July), and that the applicant had the presence of mind to inform the delegate of his father’s death on the same day he himself was notified (7 July), I am not satisfied that the applicant would have failed to relay information that he knew which was central to his fear of returning to Sri Lanka (that the CID were still interested in him).
13.The applicant has not satisfied me that these claims about ongoing CID interest in, and harassment of, his father, or that the threats he claims were made against him in 2017 are credible personal information or that they could not have been provided to the delegate before the decision was made. Consequently I am not satisfied that the information about these clamed visits being factors in his father’s decision to commit suicide are credible. The applicants claim that the suicide was, in part, motivated by distress arising from the chance that the applicant might be returned to Sri Lanka as the applicant has claimed is also difficult to accept. I note that his father’s suicide occurred prior to the date of the primary decision by the delegate. I am not satisfied there are exceptional circumstances for considering this new information.
14.The submission also states that the applicant is unwilling to inform his mother of the outcome of the primary decision, because he is scared that she will also commit suicide. However, whilst such an event would be extremely distressing for the applicant, I am not satisfied that the possibility his mother may commit suicide because of the outcome of the primary decision is, or may be, relevant to the assessment applicant’s claims for protection in Australia.
The applicant’s submissions
As noted earlier, the applicant’s overriding complaint is framed as a failure to consider. In this respect, the applicant calls in aid established principle to the effect that an administrative decision-maker, such as the Authority, is obliged to consider all claims made by an applicant and their essential components or integers with this obligation extending to claims that are the subject of clearly articulated argument as well as those which emerge clearly from the materials. The applicant challenges the failure of the Authority to consider the country information and the information about his father’s suicide. However, the applicant also acknowledges that there was an antecedent step taken by the Authority with respect to this information, namely an evaluation of this information against the criteria specified in s 473DD of the Act.
As far as the country information is concerned, the applicant does not take issue with the Authority’s application of s 473DD(b) of the Act to the first article but submits that it was unreasonable – despite these unchallenged findings – for the Authority not to have been satisfied of the existence of exceptional circumstances to justify its consideration. Alternatively, the Authority should have exercised its discretion under s 473DC of the Act to get this new information or information with similar characteristics. The gravamen of the complaint is that the Authority should have sought out, or accepted, country information relating to conditions for returning Sri Lankan asylum seekers which was more recent than the 2017 DFAT Report which, the applicant notes, was nearly a year old at the time of the Authority decision.
As far as the second article is concerned, the applicant submits that especially where it satisfied s 473DD(b)(i), the Authority should have been satisfied of the existence of exceptional circumstances to justify its consideration. The applicant described this article as providing “grave, recent confirmation of the existence of torture as an entrenched fact of Sri Lankan life” and which tended to confirm that there remained sufficient reason to find a real chance of relevant harm, even if there had been some improvement in country conditions. The applicant submits that alternatively the Authority should have got or received this article (or like, recent, country information) through the exercise of s 473DC(1).
As far as information concerning the suicide death of the applicant’s father is concerned, the applicant submits that the Authority’s approach reveals a misapplication of s 473DD of the Act. The applicant submits that the information contained in his written submission was clearly “credible personal information” within the meaning of s 473DD(b)(ii) given that it was not “inherently unbelievable” (referring to CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [40]-[43]), it was personal (being about the applicant), it was not previously known (to the Minister) and had the information about the father’s interactions with the CID been known, may have affected the Authority’s consideration of the applicant’s claims. This erroneous approach to s 473DD(b)(ii) infected the Authority’s application of s 473DD(a) (exceptional circumstances).
The applicant submits that there was an “obvious and reasonable” explanation as to why his father might not have told him earlier about the CID visits (namely, that he did not want to worry his son unnecessarily) and that the Authority should have exercised its discretion under s 473DC to seek further information from the applicant about his relationship with his father had it been concerned to exclude this explanation.
The applicant also challenges the approach taken by the Authority to the new information concerning his apprehension about how his mother might take the news of his protection visa decision. The applicant submits that the truth (or not) of this claim clearly went to the truth of the claim about the reasons for his father’s suicide (especially the continued visits by the CID) and it was incumbent on the Authority to “get new information” under s 473DC.
The Minister’s submissions
The Minister submits as follows in relation to the country information:
First, that in circumstances where the first article did not satisfy s 473DD(b) (a matter conceded by the applicant) the Authority could not consider this new information.
Second, no request was made by the applicant for the Authority to get for itself country information of a similar ilk should it not be satisfied that the information proffered by the applicant satisfied s 473DD(b).
Third, s 473DC(2) provides that the Authority does not have a duty to get, request or accept, any new information whether the Authority is required to do so by a referred applicant or by any other person, or in any other circumstances.
Fourth, while the Minister acknowledged that the power contained in s 473DC must be considered, and where appropriate exercised, within the bounds of reasonableness, this was not a case where there was an obvious, “informational gap” which it was unreasonable not to supplement (distinguishing this case from ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [16], [29]-[31]).
Fifth, as far as the second article was concerned, while the Authority found that it satisfied s 473DD(b)(i), given its date of publication, the applicant has not demonstrated how the Authority’s observations at [5] were substantially incorrect, or that it was unreasonable to find in all the circumstances that exceptional circumstances did not exist to consider it.
In relation to the information concerning the death by suicide of the applicant’s father, the Minister submits that the Authority did not apply the wrong threshold but instead the language adopted at [11]-[12] of its written statement revealed that the Authority had assessed the new claims about the CID visits based on their capacity to be believed rather than adjudging them to be positively untrue. In this regard, the Minister submits that the Authority’s reasoning is more closely analogous to that referred to in AXQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 195 (AXQ18) at [32] rather than the language employed in CSR16.
The Minister makes the further submission that even if the Authority erred in entering into a fuller deliberative exercise as to the truthfulness of the new information, any error was not material. The Minister reasons that if the new information about the applicant’s father was found to be untruthful at the s 473DD stage, there could be no basis for reasonable conjecture that it would have been accepted if it had been before the Authority for the purposes of its final decision.
As far as any suggestion that the Authority should have sought further information concerning either the “obvious possible” explanation for the father not having previously told the applicant about the CID visits, or the risk of the mother dying by suicide, the Minister rejected this by recourse to the principle that a decision-maker is not obliged to make an applicant’s case for him or her.
CONSIDERATION
The country information
Once it is accepted (as the applicant does) that it was open to the Authority to find that the first article did not satisfy s 473DD of the Act, the residual challenge reduces to one directed at the failure of the Authority to consider and/or to utilise alternative means of getting this country information, or country information of a similar character, before it for the purpose of the limited Part 7AA review.
I am not persuaded by the applicant’s argument that it was unreasonable for the Authority not to consider the exercise of s 473DC(1) of the Act to get this information. The first article concerned conditions for Tamils returning to Sri Lanka, a topic about which the Authority already had country information, including in the form of the 2017 DFAT Report. The applicant is critical of the failure of the Authority to seek out more recent information. However, the first article was published less than a month after the 2017 DFAT Report (on 18 February 2017 compared with 24 January 2017) and reported through the lens of the report by the UN Special Rapporteur on torture which was published just one day after the 2017 DFAT Report.
Likewise, I am not persuaded that the reasoning deployed by the Authority as it related to the decision not to consider the second article under s 473DD of the Act was erroneous or that it was unreasonable for the Authority not to “get” or “accept” the second article (or information of a similar character) under s 473DC(1) of the Act.
The Authority supplied an intelligible explanation for its finding that exceptional circumstances did not exist so as to justify it considering the second article. The explanation reflected the fact that the second article, being country information, did not relate to the specific circumstances of the applicant and the Authority’s appraisal that it did not introduce information that was substantially different in character to that which was already before the Authority by virtue of s 473CB of the Act and which the Authority indicated it had had regard to (Reasons, [2]).
Information concerning the death of the applicant’s father
I am not persuaded that the Authority erred in its application of s 473DD(b)(ii) of the Act to the new information constituted by the claim that the applicant’s father had, prior to his death, been visited, abused and threatened on a number of occasions by officers from the CID.
While I accept that by reference to s 473DD(b)(ii), the Authority is called on to undertake a preliminary evaluation of the capacity of new information to be believed rather than to engage more closely with its merits, I consider that the Authority did not stray from this inquiry. The Authority essentially found that the applicant had recently invented the CID claims; the inquiry was therefore concerned not with the credibility of the claims in an absolute sense but rather involved an interrogation of the way in which the timing of their articulation compared to how the applicant had presented other aspects of his claim for protection over time and the opportunities he had to do so. The Authority was plainly concerned with the failure of the applicant to relay information that was of central significance to his claims for protection at an earlier stage of the process. This is an important distinction that brings this case in closer alignment with that of AXQ18.
The information concerning the applicant’s fears that his mother might commit suicide as a response to his unsuccessful application for protection was simply irrelevant to the review. The applicant’s view as to how his mother might react to such news did not bear on any dispositive issue before the Authority.
Information about risk of torture and other abuse in detention
Applicant’s submissions
The applicant submits that the Authority did not consider all of the material before it in relation to the incidence and culture of torture and abuse of human rights, especially of persons in detention or under the control of the Sri Lankan authorities, including information directed at these topics that was referred to in the 2017 DFAT Report. The applicant’s written submissions recorded numerous examples of (parts of) country information that was before the Authority and which comprehended this topic.
As far as the 2017 DFAT Report is concerned, the applicant submits that while the Authority purported to rely on it in making findings about the risk of harm to the applicant as a returned asylum seeker, the Authority failed to make reference to that part of the report that referred to continuing violence in detention, including reports of torture in 2015 and 2016, and reports of torture carried out by police.
The applicant placed particular significance on the following paragraphs taken from the 2017 DFAT Report which (relevantly) state (applicant’s emphasis)[1]:
[1] Refer Supplementary Court Book filed by the applicant on 13 November 2023.
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).
4.13 These 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.
…
4.15 DFAT 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.
4.16 In October 2016, the Human Rights Commission of Sri Lanka (HRSCL) 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.
4.17 …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…
4.18 DFAT 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.
4.19 DFAT 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.
4.20 Because 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
4.21 DFAT 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.
4.22 Thousands 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 submits that the “thrust” of this information is that even after the end of the war and the change of government in Sri Lanka in 2015 there remained an entrenched and pervasive culture of torture and abuse by the police and other authorities affecting particularly people detained in custody, even for minor offences.
The applicant submits that the Authority’s failure to engage with this “issue” and related material in its consideration of the risk posed to the applicant as an illegal emigrant and failed asylum seeker, was material.
The applicant makes the allied submission that the Authority did not consider the question of whether he might suffer harm in detention, simply as a person in detention, rather than as a person with particular attributes and/or profile. The applicant submits that the failure to consider this question reveals itself at [39]-[45] and [50] of the Authority’s Reasons.
The applicant further submits that while the Authority considered his past political activities at [31]-[33] of its Reasons, it did not consider the possible scope of his future involvement in political activity and whether he might have a real chance of suffering serious or significant harm as a result. The Authority was also said to have been in error by failing to consider whether, if the applicant refrained from future political action, this would be because of his fear of harm.
Minister’s submissions
The Minister submits that the Authority had regard to the country information given to it by the Secretary (Reasons, [2]) and that the weight that the Authority gave to that country information was a matter for it. Further, the Authority was not obliged to refer to each piece of country information considered (citing CDW18 v Minister for Home Affairs [2019] FCA 270 at [41]). The Authority’s reasons demonstrate in any case that it paid significant and careful attention to the country information (Reasons, [28]-[45]).
As far as the Authority’s engagement with the question of whether the applicant (as a failed asylum seeker) might experience torture upon his return to Sri Lanka is concerned, the Minister’s submissions record that the Authority observed that thousands of asylum seekers had returned to Sri Lanka since 2009, including from Australia, with relatively few allegations of torture or mistreatment (Reasons, [41]). The Minister notes that in this context, the Authority expressly found that it was not satisfied that the brief period of detention that might be faced by the applicant would result in the applicant facing torture or cruel, inhuman, or degrading treatment or punishment (Reasons, [50]).
Regarding the contention that the Authority failed to consider the prospect that the applicant would engage in future political activities or whether, if he did not do so, this was because of his fear of harm, the Minister submits that a claim to this effect (of future political engagement) was not advanced by the applicant; instead, the applicant’s claims were centred on past support for the TNA. In any case, according to the Minister, the Authority assessed the situation for current members or supporters of the TNA and observed that the evidence did not support that they currently suffered from systemic discrimination or harassment (Reasons, [31]).
CONSIDERATION
I am not persuaded that the Authority erred by failing to consider all of the material before it in relation to the incidence and culture of torture and abuse of human rights in Sri Lanka.
In the first place, the obligation on the Authority is to consider all claims (and their integers) raised by a review applicant. The choice of country information relied upon by the Authority to undertake this evaluation is largely a matter reserved to the Authority.
In this case the Authority placed weight on the 2017 DFAT Report, parts of which are reproduced at [46] above. It is clear, even when regard is had to the parts of that report emphasised by the applicant, that the gravamen of the information before the Authority was to the effect identified at [41] of the Reasons, being that the incidence of torture or mistreatment for returning asylum seekers had greatly diminished.
As far as the applicant alleges error constituted by a failure to consider the question of whether he might suffer harm in detention, simply as a person in detention, rather than as a person with particular attributes and/or profile, the difficulty is that the applicant’s claims were premised on his possession of identified characteristics. His claims for protection expressly engaged his political activities, his Tamil ethnicity and his status as a returning failed asylum seeker who departed Sri Lanka illegally. The Authority considered each of these claims, including in their intersection with conditions in detention (Reasons, [43], [45], [50]).
I am finally not persuaded that the Authority overlooked any claim made by the applicant that he would suffer harm on return to Sri Lanka by reason of his continued political activities. When asked to identify this claim in the material before the Authority, the applicant’s counsel acknowledged that it had not been directly articulated by the applicant but made the submission that it emerged from the chronology accepted by the Authority, including because the Authority had not recorded a fining that the applicant had renounced his political beliefs.
I do not find this articulation convincing. Instead, the material that was before the Authority reveals that the applicant’s claims were consistently grounded in the activity he carried out on behalf of the TNA at and around the time of the 2012 election campaign.
I accept the submission of the Minister that to the extent any residual political profile did exist the Authority’s findings recorded at [31], to the effect that members and supporters of the TNA did not currently experience discrimination or harassment, were capable of comprehending and extinguishing this claim.
DISPOSITION
As noted earlier, the applicant relies upon the same sub-stratum of events and findings of the Authority to plead various species of alleged jurisdictional error.
I find, for the avoidance of doubt, that none of the matters relied upon by the applicant give rise to a denial of procedural fairness, an error of law in the application of ss 473DC and 473DD of the Act or legal unreasonableness.
It must follow that the application (as amended) be dismissed with an order that the applicant pay the Minister’s costs in a fixed amount reflecting the Court Scale.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 29 February 2024
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