FTC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 915
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FTC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 915
File number: MLG 2858 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 20 September 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – whether the Authority failed to consider relevant considerations – whether the Authority misinterpreted or misapplied the relevant law – whether the Authority made findings that were unreasonable or without a logically probative basis – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 36, 65, 473CA, 473CB, 473DC, 473DD, 473EA 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01
Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477; [2019] FCAFC 203
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
CJO15 v Minister for Immigration [2018] FCCA 446
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461; [2018] FCAFC 166
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
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 110 Date of last submissions: 21 March 2024 Date of hearing: 7 March 2024 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Mr J Lessing Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2858 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FTC17
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 applicant has leave to rely on the further amended application dated 7 March 2024.
2.The application, as amended, 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 the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises three grounds of application which allege that the Authority made a jurisdictional error by:
(a)failing to consider relevant considerations;
(b)incorrectly interpreting and applying the law; and
(c)acting unreasonably or making 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 to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in October 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On or about 22 September 2016 the applicant applied for a protection visa. In a statement accompanying his protection visa application, the applicant claimed to fear harm from:
(a)the Tamil Makkal Viduthalai Pulikal (TMVP) on account of having assisted the Tamil National Alliance (TNA); and
(b)the Sri Lankan authorities on account of being Tamil and having left Sri Lanka unlawfully.
On 20 March 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview).
On 22 May 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was subsequently referred to the Authority for review under s 473CA of the Migration Act.
The applicant, via his representative, provided a submission to the Authority on 15 June 2017.
On 6 December 2017 the Authority affirmed the delegate’s decision refusing to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority had regard to the material given to it by the Secretary under s 473CB of the Migration Act and a written submission provided by the applicant to the extent that it contained argument rather than new information. The Authority identified two new claims in the submissions which amounted to new information. The first new claim was that the applicant had opposed and campaigned against the Sri Lankan Freedom Party (SLFP), having made direct remarks about the SLFP during the election campaign, and that he was a political activist. The second new claim was that, given the applicant’s ethnicity and age, he would not be in a position to safely relocate to another area of Sri Lanka. The Authority was not satisfied that the requirements of s 473DD of the Migration Act were met in relation to the new information.
The Authority accepted the applicant’s claim to have previously worked for the Sri Lankan police and considered it was not implausible that, as a result of the conflict between the government and the LTTE at that time, he may have been abducted by LTTE members in 1990 and held as a prisoner. The Authority did not accept that the applicant had otherwise faced adverse attention for having worked for the police.
The Authority accepted that when the applicant resigned from the police for a period in 1990, he was harassed by the Sri Lankan Army as part of the routine round up of Tamils in the area, and that he was beaten on suspicion of having left the police to support the LTTE as he was Tamil. The Authority found that there was no evidence the applicant was identified as an LTTE supporter at any time after these initial suspicions during the round up of Tamils during the civil conflict.
The Authority accepted based on the applicant’s consistent and credible account that he supported the TNA during the 2010 and 2012 elections by assisting the local TNA candidates in their campaigns for those elections. The Authority considered in all the circumstances that the applicant’s involvement with the TNA was low-level, being limited to providing canvassing assistance to promote the local TNA candidates during the respective election periods.
The Authority was willing to accept that the applicant was assaulted on one occasion during the 2010 election on account of canvassing for the local TNA candidate but did not accept that he was singled out by the TMVP as a person of particular interest on account of having supported the TNA by assisting with the campaign of the TNA candidate.
The Authority did not consider it plausible that the applicant would have agreed to assist the TNA candidate in the 2012 election if the extent of any threats and intimidation he received from TMVP members in relation to his previous work supporting the TNA candidate in the 2010 election was of any significant magnitude. The Authority accepted that the applicant engaged only in “indirect” support for the TNA candidate in the 2012 election because of a threat letter he received from the TMVP. However, the Authority did not accept that the applicant was assaulted by the TMVP three or four times during the 2012 election period for assisting the TNA candidate as claimed.
The Authority was satisfied that the applicant was abducted, detained, questioned and beaten by some TMVP members in October 2012, but did not accept that this incident occurred because the applicant was targeted as a TNA supporter who had assisted the local TNA candidates in both the 2010 and 2012 elections. The Authority was not satisfied that the applicant remained of any interest to the TMVP because of his TNA involvement in supporting the previous TNA candidate or because of his previous government job with the police. The Authority did not consider it likely that the TMVP would have gone to the extent of abducting the applicant just to beat him up because he had supported the TNA in the 2010 and 2012 elections. The Authority also did not consider it plausible that the applicant would have attracted adverse interest from the TMVP in October 2012 because he had previously worked for the police almost 20 years prior, and before the formation of the TMVP.
Having regard to the applicant’s low-level support of the TNA, the extent of the support for the TNA in Sri Lankan politics, the absence of evidence of systematic targeting of TNA members or supporters, the lack of evidence that TMVP continue to operate as a paramilitary group and recent reports of criminal prosecution of former leaders of the TMVP, the Authority was not satisfied that the applicant faced a real chance of harm from the TMVP on account of his involvement with the TNA.
The Authority accepted that the applicant’s abduction by TMVP members in 2012 was because he worked as a bank security guard at the time. Noting reports that paramilitary groups, including the TMVP, were involved in criminal activity during the final phase of the civil conflict, the Authority accepted that the applicant was threatened with a gun and, feeling as though he did not have a choice, would have provided the TMVP with information in relation to bank security arrangements and the location of where money was kept at the bank. The Authority was not satisfied that the applicant was of any ongoing interest to the TMVP members after he complied with their demands and was released. The Authority did not accept that the applicant fled Sri Lanka because he feared the consequences of not assisting the TMVP members as they had requested. The Authority was not satisfied that the applicant faced a real chance of harm on return to Sri Lanka from any TMVP members because, having worked as a bank security guard, he did not assist them with any planned bank robbery.
The Authority accepted that the applicant was a Tamil from the Eastern Province but, having regard to county information, did not consider the applicant would face a real chance of serious harm on this basis.
The Authority accepted that if the applicant is returned to Sri Lanka, he may be identified as a person who sought asylum in Australia and who departed Sri Lanka illegally. The Authority considered the checks and investigations that the applicant would be likely to be subjected to on arrival at Colombo airport and accepted that the applicant was likely to be charged under the Immigrants and Emigrants Act 1949 (Sri Lanka). Based on country information, the Authority was not satisfied that the applicant would suffer any harm as a returning asylum seeker and was not satisfied that the treatment that he might face for breaching the Immigrants and Emigrants Act would amount to serious harm or significant harm.
The Authority found that the applicant did not meet the requirements of ss 36(2)(a) or (aa) of the Migration Act and affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The applicant filed his judicial review application on 27 December 2017, and the application was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By an amended application filed on 17 February 2024 the applicant raises three grounds of application (emphasis in original):
1.The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.
Particulars
(a)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 and of persons with links to the LTTE.
(b)Further or in the alternative to particular (a) to this Ground, the Authority did not consider as required by law the question whether the Applicant may suffer torture or other relevant harm during any period he may be detained on return to Sri Lanka.
(c)The Authority did not consider whether both his support for the TNA as well as his position as a security guard for a bank were together motives for the TMVP to abduct, detain, question and beat him on or about 5 October 2012. (Decision and reasons, [18]).
(d)The Authority did not consider what may be future involvement of the Applicant as a supporter of the TNA if he returns to Sri Lanka, and whether that may cause him to have a real chance or a real risk of suffering relevant harm, when these were questions squarely raised by the claims, evidence and the Authority’s findings that the Applicant had supported the TNA in the past and had been assaulted for doing so. (CB 197-198, [14]-[17]).
2.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 473DC and 473DD of the Migration Act 1958 (C’th) (“the Act”), in regarding as “new information” the claim “that he had opposed, and campaigned against the Sri Lankan Freedom Party (SLFP), having made directs remarks about the SLFP during the election campaign and that he was a political activist”, when this was implicit in his claims previously made to the delegate that he had supported the TNA in election campaigns in 2010 and 2012. (CB 194, Decisions and reasons [6]).
(b)Further or in the alternative to particular (a) to this Ground, the Authority erred in finding that the claim “that he had opposed, and campaigned against the Sri Lankan Freedom Party (SLFP), having made directs remarks about the SLFP during the election campaign and that he was a political activist”, was not ‘credible personal information” within the meaning of section 473DD(b)(ii) of the Act. (CB 194, Decision and reasons [6]).
(c)Further to Particular (b) to this Ground, the Authority erred in its application of section 473DD(a) of the Act and in not finding exceptional circumstances to consider what it regarded as “new information”, because it erred in its conclusion that the claim “that he had opposed, and campaigned against the Sri Lankan Freedom Party (SLFP), having made directs remarks about the SLFP during the election campaign and that he was a political activist”, was not ‘credible personal information” within the meaning of section 473DD(b)(ii) of the Act. (CB 194, Decision and reasons [6]).
(d)The Authority erred in 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) in not finding that there was such a real chance and real risk of relevant harm to the Applicant from the following factors in combination:
(i) the evidence of incidents of torture in Sri Lanka;
(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 Applicant’s past support for the TNA may mean that he would continue some work as a TNA supporter in future;
(v)as an illegal emigrant and asylum seeker who would be detained and charged and may be briefly imprisoned on return to Sri Lanka. (CB 205-206, Decision and reasons, [50]-[51], [61]).
3.The Authority fell into jurisdictional error in that it was legally unreasonable or made findings without logically probative material.
PARTICULARS
(a)The Authority was legally unreasonable in its finding that “I do not accept that the applicant was assaulted by TMVP on 3 or 4 times during this election period for assisting the local TNA candidate as claimed in his written statement…” (CB 198, Decision and reasons, [17]).
(b)Further or in the alternative to particular (b) to Ground 2, the Authority was legally unreasonable in not finding in not finding that there was a real chance or a real risk of relevant harm to the Applicant from the following factors in combination:
(i)the evidence of incidents of torture in Sri Lanka;
(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 Applicant’s past support for the TNA may mean that he would continue some work as a TNA supporter in future;
(v)as an illegal emigrant and asylum seeker who would be detained and charged and may be briefly imprisoned on return to Sri Lanka. (CB 205-206, Decision and reasons, [50]-[51], [61]).
At the hearing, the applicant sought leave to rely on a further amended application, which added a further particular to ground 1. Proposed particular (e) reads:
The Authority did not consider the Applicant’s claims about the continuing threat posed by the TMVP, as “still active … and an ongoing threat to my safety”, shown by the TMVP having shot and killed a Tamil man he knew who lived a few villages away from him, and by his two relatives who stood for election as having to live under police protection for 24 hours a day (CB 72, [14], [17]).
I gave the parties an opportunity to file additional submissions after the hearing addressing whether the applicant should be given leave to rely on particular (e) and indicated to the parties that I would address in my judgment whether leave should be granted to the applicant to rely on the further amended application.
The evidence before the Court comprises a court book filed on behalf of the Minister on 17 October 2018 and a supplementary court book filed on behalf of the applicant on 17 February 2024 which includes country information.
PRELIMINARY ISSUE: SHOULD THE APPLICANT BE GRANTED LEAVE TO RELY ON THE FURTHER AMENDED APPLICATION?
Rule 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules) provides that the Court, at any stage in a proceeding, may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit.
The applicant submitted that in determining whether I should, in accordance with this rule, allow him to rely on the further amended application, I should be guided by the judgment of Judge Manousaridis in CJO15 v Minister for Immigration [2018] FCCA 446, where his Honour said at [15], in relation to a similarly worded provision in the Federal Circuit Court Rules 2001 (Cth):
Under r.7.01(1) of the Federal Circuit Court Rules 2001 (Cth) the Court may “allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court . . . thinks fit”. The principles that should guide the exercise of that discretion may be taken to be those identified by Stone J in Medich v Bentley-Smythe Pty Ltd [[2010] FCA 494 at [8]]:
[L]eave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the Court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the Court to punish a party for delay in seeking an amendment.
In the present case, both parties accepted that, in circumstances where I afforded them an opportunity after the hearing to file written submissions, any prejudice that had previously arisen from the late notice of the proposed amended application had been addressed and any further prejudice to the Minister could be addressed by an appropriate costs order.
The principal factor in the present case that will determine whether or not leave should be granted to allow the applicant to rely on the amended application is the merits of the proposed amendment.
On its face, the proposed amendment introduces a further particular to ground 1 to allege that the applicant advanced a claim that the TMVP was still active and a threat to his safety, with reference to an example of the death of a Tamil man he knew who lived a few villages away from him, and that his two relatives who stood for election having to live under police protection for 24 hours a day, and that the Authority did not consider this claim. Determination of this issue requires careful consideration of the claims as advanced by the applicant and the findings of the Authority as addressed in its reasons. I am satisfied that the proposed amendment to the application is not so obviously futile that the applicant should be refused leave to rely on the amended application. I therefore grant leave to the applicant to rely on the amended application and I address the merits of particular (e) in the consideration of ground 1 below.
GROUND 1: WHETHER THE AUTHORITY FAILED TO CONSIDER RELEVANT CONSIDERATIONS
By ground 1 the applicant, alleges that the Authority failed to have regard to relevant considerations.
There does not appear to be any dispute between the parties in relation to the principles relevant to this ground. The Authority was required to consider each of the claims expressly articulated by the applicant and their component integers, as well as any claim that was not expressly articulated but which clearly emerged on the material before the Authority based on established facts: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]. The obligation to consider claims and evidence requires the Authority to ‘read, identify, understand and evaluate’ the relevant material: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at [24]. The weight to be afforded to the material before the Authority is a matter for it: Plaintiff M1 at [24].
The Authority is required by s 473EA of the Migration Act to provide a written statement of its decision that sets out the decision of the Authority in the review, sets out the reasons for the decision and records the day and time on which the statement is made. The Federal Court has held that the Authority is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based and the fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered: Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461; [2018] FCAFC 166 at [49].
The applicant submitted that the Authority failed to consider the following matters, which I address in turn:
(a)all of the material before it in relation to the prevalence and culture of torture and abuse in Sri Lanka;
(b)the question of whether the applicant may suffer torture or other relevant harm during any period that he may be detained upon return to Sri Lanka;
(c)whether both the applicant’s support for the TNA as well as his position as a security guard for a bank were together motives for the TMVP to abduct, detain, question and beat him in 2012;
(d)what future involvement the applicant may have as a supporter of the TNA if he returns to Sri Lanka and whether that may cause him to face harm; and
(e)the applicant’s claims regarding the continuing threat posed by the TMVP shown by the TMVP having shot and killed a Tamil man who lived a few villages away and by relatives who stood for election having to live under constant police protection.
Particulars (a) and (b)
It is convenient to address particulars (a) and (b) together. By particular (a), the applicant alleges that 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 abuse of persons in detention or with links to the LTTE. By particular (b), the applicant alternatively alleges that the Authority did not consider as required by law the question of whether the applicant may suffer torture or other relevant harm during any period he may be detained on return to Sri Lanka.
The applicant raised the issue of human rights in a statutory declaration provided with his visa application, where he said:
…I am also aware that leaving Sri Lanka illegally is unlawful and, should I be forced to return, would result in my being held in custody and only released if I am able to pay for my bail. I am worried that I would be subject to harm in custody were I to return to Sri Lanka, on account of my having provided assistance to my relatives in their campaign in the elections as a TNA candidate. Furthermore, I have heard from my relatives in Sri Lanka that often when people are bailed as a result of payment they are again imprisoned for fleeing Sri Lanka illegally. I am concerned if I am forced to return this will happen to me and I will suffer serious harm in custody where I have been told people are violently assaulted and even killed.
In his submissions to this Court, the applicant noted some of the country information that had been considered by the delegate and extracted information from a report published by the Department of Foreign Affairs and Trade (DFAT) on 24 January 2017 titled ‘DFAT Country Information Report Sri Lanka’ (DFAT report). The applicant emphasised the following parts of the DFAT report:
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.
…
4.15DFAT 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.
4.17… 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…
4.18DFAT 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 the thrust of this material was that there was an entrenched and pervasive culture of torture and abuse by the police and other authorities in Sri Lanka, especially of persons in custody, even for minor offences. The applicant submitted that the Authority did not consider the breadth and depth of the information and the core issue of entrenched torture, and the relevant parts of the DFAT report, in considering the risk of harm to the applicant while briefly held in detention or in prison while being questioned on return to Sri Lanka as an illegal emigrant and failed asylum seeker. The applicant noted that the Authority made no reference to the DFAT report’s passages on torture in its refugee assessment and made only a passing reference to the risk of torture being ‘low’ in the complementary protection assessment.
The applicant submitted that the Authority did not consider relevant material and did not consider a relevant question which was raised by the applicant, relating to the risk of torture in prison or detention under the police or authorities on return.
The Minister submitted that particulars (a) and (b) should be rejected because the Authority evidently considered the DFAT report, including as part of its refugee assessment, and referred to country information indicating that there had been credible reports of mistreatment and torture. The Minister submitted that the Authority was not required to recite or reproduce every relevant paragraph of the DFAT report, particularly in circumstances where it had identified that the overall assessment of the DFAT report was that the risk of torture to illegal emigrants and failed asylum seekers was low.
The Minister submitted that the Authority expressly considered in detail the circumstances in which the applicant was likely to be detained, the length and nature of that detention and the risk of serious harm that might attach to that detention, and that was all the Authority was required to do.
I accept the Minister’s submissions in relation to these particulars. The Authority undertook a detailed consideration of country information, including in relation to torture and human rights abuses in Sri Lanka.
In considering the improved security and humanitarian situation for Tamils in Sri Lanka, the Authority observed at [35] of its reasons:
Torture, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored and on DFAT’s assessment, the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
In considering the risk of harm to the applicant as a returning asylum seeker who departed Sri Lanka illegally, the Authority had regard to country information regarding the risk of torture or mistreatment and said at [41]-[42] of its reasons (footnotes omitted):
41.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).
42.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. The referred materials contain a number of reports from 2015 of Tamils being detained on arrival to Sri Lanka, which indicate that those arrested were mostly known former LTTE members. I note the Human Rights Watch (HRW) had made various calls in 2012 for the UK to halt deportation of all failed Sri Lankan asylum seekers, which was supported by reports on torture of returnees made around that time by Tamils Against Genocide (TAG) and Freedom from Torture. Having also considered the recent May 2016 Freedom From Torture (FFT) report (FFT report), I note from the accounts of claims made in these reports that nearly all cases appear to have involved accusations of specific LTTE involvement or links rather than the victim being singled out as a failed Tamil asylum seeker. The most recent FFT report similarly noted that in the majority of cases the victims had an actual LTTE connection or links to separatist activities. I have found that despite his experiences during the civil war, the applicant does not have any LTTE profile and there is no evidence that since this time he was involved in any separatist activities, either in Sri Lanka or abroad.
In its complementary protection assessment, the Authority expressly considered the risk of torture that the applicant may face while potentially being held in prison for a few days if he is charged for breaching the Immigrants and Emigrants Act. The Authority said at [61]:
I have accepted that the applicant will be identified on arrival at the airport in Sri Lanka as having departed illegally and is likely be charged with having committed an offence under the I&E Act. Further, that the applicant may be questioned and detained at the airport for up to 24 hours depending on the length of individual investigation and the availability of a magistrate, potentially being remanded for a relatively brief period in prison pending a bail hearing and be fined for his illegal departure. I accept that, if so detained in a prison, he will be subjected to poor prison conditions, which the country information indicates are typical of Sri Lankan prisons as a result of overcrowding, poor sanitation and lack of resources. As noted, recent DFAT country information reports that the risk of torture or mistreatment for the majority of returnees is low, including for those suspected of an offence under the I&E Act. I am not satisfied that there is a real risk that the applicant would be subjected to mistreatment or torture during any possible brief period in detention on return to Sri Lanka.
I am not satisfied that the Authority failed to consider all of the relevant information and material before it in relation to the prevalence of torture, as asserted by particular (a). The Authority expressly acknowledged country information that identified credible reports of mistreatment and torture in Sri Lanka. It was open to the Authority, despite this information, to also have regard to country information identifying that in the majority of cases those affected had actual links to the LTTE or separatist movements and, considering its findings on the applicant’s profile, to find that the applicant did not face a real chance of serious harm. While I acknowledge that there are some paragraphs of the DFAT report that the Authority did not expressly refer to in its reasons, this does not establish jurisdictional error. Given the wide range of information from the DFAT report and other country information that the Authority referred to in its reasons, there is no basis for finding that the Authority did not have regard to the whole of the DFAT report and other country information. The Authority has simply referred in its reasons to the country information that it considered most relevant to the factual findings it made. This course was open to the Authority.
Given the Authority’s express finding at [61] that it was not satisfied the applicant would be subjected to mistreatment or torture during any possible brief period in detention on return to Sri Lanka, the assertion in particular (b) that the Authority did not consider the question of whether the applicant may suffer torture or other relevant harm during detention must be rejected. The Authority considered the applicant’s claims based on a fear of torture in the manner required by Plaintiff M1.
Particular (c)
In advancing his claims for protection, the applicant claimed that in October 2012, he was detained and beaten by members of the TMVP. In his claims, he said that the TMVP members asked him questions about why he was still helping the TNA with their campaign and he was also asked to tell them about safety measures and the location of lockers inside a bank where he worked as a security guard. The Authority in its reasons accepted that the applicant was abducted by members of the TMVP and that this was because he worked as a security guard in a bank. The Authority did not accept that the abduction was as a result of the campaign work that the applicant performed for the TNA. The Authority said at [18]:
During his PV interview the applicant maintained his claim that he was abducted on … October 2012 by some TMVP members, more than a month after the 8 September 2012 election, when the local TNA candidate that he had been supporting won the election. Whilst I am satisfied that an incident such as that claimed by the applicant occurred whereby he was abducted, detained, questioned and beaten by some TMVP members on or about … October 2012, I do not accept that this incident occurred because he was targeted as a TNA supporter who had assisted the local TNA candidates in the 2010 and 2012 elections. The applicant stated in his PV interview that at the time he was abducted he was warned about having worked against the TMVP in both the 2010 and 2012 election and reminded that he had also worked against the TMVP when he was a police officer. However, I am not satisfied that the applicant remained of any interest to the TMVP or any persons acting on behalf of them either because of his TNA involvement in supporting the previous TNA local candidate or because of his previous government job with the police. I do not consider it likely that the TMVP would have gone to the extent of abducting the applicant just to beat him up because he had supported the TNA in the 2012 election and also the previous 2010 election. …
In accepting that the applicant was abducted because of his work as a security guard in a bank, the Authority said at [25]:
…I accept the applicant was abducted on … October 2012 by some TMVP members because he worked as a bank security guard at that time. Whilst I am not convinced that all matters relating to his abduction occurred as claimed by the applicant during the PV interview, he has been consistent in claiming that he was abducted by TMVP members on … October 2012 since he first made this claim as recorded in his arrival interview. I consider that it was plausible that members of the TMVP operating in the local area would, at that time, have been interested in the applicant given his role as a security guard at the bank. I accept that the applicant worked as a security guard at the local bank, noting the applicant’s consistent claims as recorded in his arrival interview and also his PV application and evidence given at interview. …
The applicant submitted that the Authority treated the two possible motivations of his TMVP abductors, namely supporting the TNA in two elections and working as a security guard at the bank, as mutually exclusive and did not consider whether the two motivations collectively were a motive for the TMVP to abduct, detain, question and beat the applicant in October 2012.
The applicant submitted that the possibility of a dual motivation was squarely raised on the material before the Authority and from the Authority’s findings. The applicant referred to the Authority’s findings that the applicant had canvassed for the TNA in the 2010 and 2012 elections, had been assaulted in 2010 as a result, and that the 2012 election was less than a month before the abduction and beating. The applicant submitted that the Authority did not appear to rule out the possibility of violence in 2012 when it noted reports of the 2015 election as indicating ‘that the incidents of violence during the campaign for this election were of a relatively low scale and intensity in comparison to the past’.
The applicant submitted that had the Authority considered whether the TMVP had a dual motivation and found accordingly, this may have affected the decision because the applicant would have had an enduring, more solid and recent profile with the TMVP as a political opinion.
The Minister submitted that there is nothing in the Authority’s reasons that shows the Authority considered the applicant’s TNA support and position as a security guard as mutually exclusive, and rather found that the applicant did not remain of any interest to the TMVP at the time he was abducted. The Minister referred to the Authority’s finding that the TMVP were motivated to abduct the applicant as a result of his position as a security guard as a bank, and submitted that the Authority evidently considered that the applicant’s historical TNA support was not a motivating factor for the abduction, whether alone or in combination with his position as a security guard.
I accept the Minister’s submission that there is nothing in the Authority reasons to indicate that the Authority understood the two reasons that the applicant claimed to have been abducted to be mutually exclusive. The Authority considered both reasons that the applicant claimed to have been abducted and accepted one but not the other. I accept the Minister’s submission that the Authority’s finding that the applicant was not targeted by the TMVP because of his support for the TNA should be understood as a finding that he was not targeted for this reason, whether of itself or in combination with his position as a security guard.
Having accepted that the applicant was targeted because of his employment as a security guard at a bank, and having rejected that the applicant was targeted because of his support of the TNA, it was not necessary for the Authority to expressly address whether the applicant might have been targeted for a dual reason. It is implicit is its rejection of the applicant being targeted on account of his TNA support that the Authority was not satisfied that there was a dual reason for the TMVP to have targeted the applicant.
Particular (d)
The applicant submitted that the Authority did not consider the applicant’s future involvement as a supporter of the TNA if returned to Sri Lanka and whether there was a real chance or real risk of suffering relevant harm on this basis. The applicant submitted that these were questions squarely raised by the claims and evidence before the Authority, and the Authority’s findings that the applicant had supported the TNA in the past and had been assaulted for doing so.
The applicant submitted that notwithstanding the Authority’s reliance on country information reporting lesser election violence in 2015 and that the TMVP no longer operated as a paramilitary group but rather as a registered political party, it still remained an open question of what may be the risk of harm to the applicant in the reasonably foreseeable future as a TNA supporter motivated by family relationships and political conviction, and the Authority did not sufficiently address that question.
The Minister submitted that the applicant did not advance any claim that he was going to be an active TNA supporter and feared harm on this basis, and nor did any such claim clearly arise from the materials. The Minister submitted that for the Authority to address this claim, the Authority would have had to speculate as to whether or not the applicant would continue to actively support the TNA in the future and the nature of that support, in circumstances where there was no evidence before the Authority on this issue.
The Minister submitted the only basis upon which the Authority could have undertaken this speculative assessment would have been upon its findings of what had occurred in the past. In this regard, the Minister submitted that the Authority did not have any basis to conclude that the applicant’s support would be anything higher than the low-level support he had given the TNA in the past. The Minister also submitted that the Authority had found that the single occasion of physical harm from the TMVP did not single the applicant out and rejected that the applicant was of any ongoing adverse interest to the TMVP.
The applicant has not identified any expressly articulated claim by the applicant that he will provide support for the TNA in the future and that he will face harm as a result of this. I do not accept that any unarticulated claim to this effect clearly emerges from the materials before the Authority. The applicant’s claim was that he provided some support to the TNA, which the Authority considered to be low-level support, during the 2010 and 2012 elections. That the Authority accepted that he provided this support and accepted that he was assaulted on one occasion in 2010 does not give rise to any implied claim that he would continue to support or campaign for the TNA in the future.
The Authority considered and made findings in relation to the applicant’s claims to have campaigned for the TNA in the 2010 and 2012 elections. It considered country information about the improved position of the TNA in Sri Lankan politics and the increasing political influence of Tamils, and well as the relatively low rates of electoral violence. It also considered that the TMVP no longer operated as a paramilitary. Based on these considerations, the Authority was not satisfied that the applicant would face a real chance of harm based on the low-level support that he provided to the TNA. The Authority considered the applicant’s claims as they were advanced by him and was not required to consider anything further in respect of the applicant’s claims based on his support for the TNA.
Particular (e)
In advancing this particular, the applicant emphasised the following parts of his written statement outlining his protection claims:
14.I am aware that last year, on 26 May 2015, the TMVP shot and killed someone (a Tamil) who I knew and who lived a few villages away from me. I knew this man as we visited the same temple, at which he was a Brahmin. Though I am not sure why they killed this man, the fact that they did (and did this so recently) to me demonstrates that the TMVP is still active in Sri Lanka and is an ongoing threat to my safety.
15.I am also fearful of returning to Sri Lanka as the TMVP continue to visit my home and ask about my whereabouts to my wife. This occurred as recently as 2015, when TMVP members visited my home and asked as to my whereabouts. My wife was verbally threatened by the TMVP members, and was forced to inform the TMVP members that I had fled Sri Lanka on account of the persecution I had faced while in Sri Lanka. The TMVP are therefore aware that I have left Sri Lanka and would, I believe, target me should I be forced to return to Sri Lanka, on account of my having assisted my relatives with political campaigns for the TNA.
16.I believe the TMVP continue to be active across Sri Lanka (and not only in the Batticaloa area). They are a registered political group and, as they are not a registered terrorist organization, they are able to operate across Sri Lanka, meaning that there are no restrictions on their capacity to operate whosesoever in Sri Lanka they choose to. Accordingly, I do not feel that it would be safe for me to return to, and live in, any part of Sri Lanka.
17.While my two relatives who stood for election with the TNA are still in Sri Lanka, they have been forced to live under the protection of police guards. They are under police protection for 24 hours a day. This is because, having been elected to positions with the TNA, they live with the possibility of retaliation by the TMVP. If they want to go anywhere outside their houses, they must therefore be accompanied by police guards. …
The applicant submitted that the Authority’s finding that the TMVP was not interested in the applicant was based in significant part on its findings that the TMVP was no longer a paramilitary group and had disarmed, and also that members and supporters of the TNA were not at relevant risk. The applicant submitted that, in coming to this view, the Authority completely overlooked the applicant’s evidence about the man he knew who had been shot by the TMVP in 2016, his submission about the TMVP being able to operate without restriction across Sri Lanka and his evidence that his relatives still required police protection. Had the Authority considered this information, it may have found that the TMVP continued to be a violent threat.
The Minister submitted that the applicant did not expressly claim that the TMVP continued to operate as a paramilitary group and rather claimed that they remain active ‘as a political party’, that ‘is still active in Sri Lanka and is an ongoing threat to [his] safety’ and had become a registered political party and was not a registered terrorist organisation so it could operate without restrictions. The Minister submitted that the evidence the applicant identifies in particular (e) was not compelling or clear evidence that the TMVP remained a paramilitary group as at the date of the Authority’s decision. At its highest, it simply showed that individuals from the TMVP had engaged in violence on one occasion and that police apprehended there was the possibility of some violence by such individuals against elected TNA officials.
The Minister submitted that the Authority identified the claim referred to by the applicant in particular (e) as follows:
He fears that he would be targeted by the TMVP on account of having assisted his relatives with their political campaigns for the TNA, his involvement with the TNA, and also because he had worked for the police in the past and because he had not assisted with the bank robbery as he had promised. He believes the TMVP continue to be active across Sri Lanka and does not feel that it would be safe to him to return to, and live in, any part of Sri Lanka.
The Minister submitted that although the Authority did not expressly set out the examples given by the applicant in his claim, it was not required to do so and the minor omission of these matters from the Authority’s reasons does not demonstrate that they were not considered. The Authority identified the key elements of the overarching claim in support of which the examples were offered. The Minister submitted that the Authority identified that recent country information and reporting before the delegate did not indicate that the TMVP still operated as paramilitary group, having disarmed and moved into mainstream politics as a registered political party. It also identified the lack of evidence of systematic targeting of TNA members or supporters and noted that there was no evidence that TMVP was still in existence as paramilitary group in Sri Lanka and nor was there any credible evidence that any breakaway member of that group or any paramilitary group was still interested in the applicant. The Minister submitted that, read fairly, the Authority considered whether, and in what form, the TMVP were active as at the date of its decision. The Minister submitted that rather than inferring that the Authority overlooked the claim identified in particular (e) and the supporting evidence, it should be inferred that the evidence of the Brahmin being shot and the TNA members requiring police protection were matters which the Authority did not find credible, did not assign a substantial degree of weight to (being unsupported assertions by the applicant), or were matters that it did not consider to be material to its decision, particularly where the applicant was neither a Brahmin nor an elected TNA member.
While in some cases, a failure by the Authority to refer to relevant evidence might give rise to an inference that the evidence was overlooked, I do not accept that is what happened in the present case. I acknowledge that the Authority did not expressly refer in its reasons to the evidence that the applicant gave of examples of why he believes the TMVP is still active and still a threat to him. However, these were examples only relating to other people whose circumstances are different to those faced by the applicant, as found by the Authority. I rather find that these examples were not expressly mentioned because the Authority did not, for whatever reason, consider them to be material to its consideration of the applicant’s claims. The Authority carefully considered country information before it about the current status of the TMVP and the general risk to TNA supporters and relied on this country information, in conjunction with the findings it made in relation to the specific circumstances of the applicant, in finding that the applicant did not face the requisite risk of harm. The Authority expressly considered the applicant’s claim that the TMVP was still active and made findings that were open to it on the evidence. I accept the Minister’s submissions in relation to this particular.
Particular (e) does not establish jurisdictional error.
Conclusion in relation to ground 1
The applicant has not established by ground 1 that the Authority decision is affected by jurisdictional error.
GROUND 2: WHETHER THE AUTHORITY MISINTERPRETED OR MISAPPLIED THE LAW
Particulars (a), (b) and (c)
Particulars (a), (b) and (c) of ground 2 all relate to the Authority’s treatment of new information and the application of s 473DD of the Migration Act. New information is defined in s 473DC(1) of the Migration Act as documents or information that were not before the Minister when the Minister made the decision under s 65 of the Migration Act and that the Authority considers may be relevant.
Section 473DD of the Migration Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The applicant said in his submission to the Authority, after referring to the assistance he provided to his relatives who were candidates for the TNA:
During the election campaign as part of the process, the applicant has made direct remarks about the SLFP, and as to how they had engaged people from TMVP to have direct unfettered control over the day to day life’s of the Tamil People. As such the TMVP had noticed the applicant and his demeaning remarks and took personal offence against him.
… Fundamentally, we submit that the applicant was a target, not necessarily due to his standing with the TNA and but the fact that he campaigned against the SLFP.
The Authority identified this as new information and addressed it at [6] of its reasons, where it said:
The first new claim made on behalf of the applicant is that he had opposed, and campaigned against the Sri Lankan Freedom Party (SLFP), having made directs remarks about the SLFP during the election campaign and that he was a political activist. This is additional to the claim made before the delegate that he had assisted two of his relatives who were the local Tamil National Alliance (TNA) candidates in the 2010 and 2012 elections. The applicant has not explained why he did not make this claim earlier, having been given the opportunity by the delegate to provide further information at his protection visa (PV) interview. Having listed to the audio recording of the PV interview, the applicant did not provide any information about the new claim now being made. He now claims that these remarks led the Tamil Makkal Viduthalai Pulikal (TMVP) who he fears, to take personal offence against him. Had this been the case, it may be expected that he would have advised the delegate. The applicant has not satisfied me that this new information could not have been provided to the delegate before the delegate made the primary decision or that it is credible personal information. In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.
By particular (a), the applicant asserts that the Authority erred by considering the identified information as new information, rather than information that was implicit in his earlier claims that he had supported the TNA in election campaigns in 2010 and 2012. The applicant submitted that it was not reasonably open for the Authority to consider the information in the submission as new information and, rather, it was a different formulation of the claims already made but with the provision of some additional detail that was implicit in the claim as previously made. Counsel for the applicant acknowledged in his oral submissions that there are additional details in the submission that were not before the delegate, but submitted that there was country information that the SLFP was a party aligned with the government and to that extent was a party that was opposed by the TNA and therefore the information that the applicant made direct remarks about the SLFP was simply an elaboration of previous claims and not new information.
The Minister submitted that the information identified by the Authority was properly considered as new information. The Minister referred to the applicant’s claim to have assisted his relatives who were TNA members in the 2010 and 2012 election campaigns and submitted that at no stage did the applicant provide information which conveyed the previously undisclosed facts that he had made direct remarks about the SLFP or that he was a political activist.
The Minister alternatively submitted that to the extent that the asserted fact that the applicant was a political activist is considered not to be new information but rather the nature of a submission or recharacterization of already available facts, a failure to have regard to that information would not be material because the applicant had explained in his interview the precise nature of his political activities and those facts were considered by the Authority.
As identified in the Minister’s submission, in considering whether the Authority correctly identified the information in the submissions as new information, some guidance can be found in the observations of the Full Court of the Federal Court in CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477; [2019] FCAFC 203 at [8]:
The appellants’ argument was that the Federal Circuit Court erred in finding the second appellant had not made a “new claim” before the Authority (as indeed the Authority appeared to accept at [18] of its reasons). Describing what is in issue as a “claim” may pay insufficient attention to the description of “information” given by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [24], as “a communication of knowledge about some particular fact, subject or event”. As senior counsel for the Minister contended in this appeal, what matters is whether what is in a “claim” are new or different facts, or factual information, or whether what is occurring is that a visa applicant is relying on the same facts, or factual information, but characterised in a different way. In the latter case, this will not be new information. Questions of characterisation are in the nature of a submission: they are not facts, or factual information.
In the present case, the Authority was correct to identify the information in the submission as ‘new information’. The applicant provided new and additional facts in support of his claimed fear of harm on account of his political activities or views. The claims advanced when the matter was still before the delegate were that the applicant was not a member of the TNA and that he assisted two relatives in their campaigning activities. The nature of the activities was characterised by both the delegate and the Authority as ‘low-level’ support. There is nothing in the information before the delegate to suggest that the applicant actively spoke against any other political party or that he could be perceived as a political activist in any way.
Particulars (b) and (c) are alternatives to particular (a) and are premised on the information in the submissions being new information.
In relation to particular (b), the applicant submitted that the Authority erred in finding that the new information was not ‘credible personal information’ for the purposes of s 473DD(b)(ii) of the Migration Act. The applicant submitted that, having regard to the authorities in relation to the terms ‘credible’, ‘personal’ and ‘not previously known’, if the Authority had properly understood and applied the section, it would have found that the requirements of s 473DD(b)(ii) of the Migration Act were met.
The Minister submitted that the applicant does not explain why the Authority was wrong in relation to s 473DD(b)(ii) beyond saying that the new information was credible (in the sense that it was not inherently unbelievable), personal (being about an identified person) and not previously known to the Minister. The Minister submitted that it is evident from [6] of the Authority’s reasons that the Authority did not consider the new information to be ‘credible’ and gave reasons for this finding. Those reasons were that the applicant had not provided any reasons why the SLFP information had not been raised earlier despite being given an opportunity by the delegate to raise further information, that the applicant did not provide any information about the SLFP in his protection visa interview and that the Authority considered that if may be expected that the applicant would have advised the delegate of the SLFP information given that he claimed it led the TMVP to take personal offence against him, in circumstances where he claimed to fear harm at the hands of the TMVP.
The Minister submitted that the Authority’s findings do not disclose that it made a definitive finding about whether the SLFP information was in fact true, and rather considered that it was not capable of being believed.
I accept the Minister’s submissions in relation to particular (b). The Authority’s relevant finding was that the applicant had not satisfied it that the new information was credible personal information. I accept that, properly understood, it was the credibility of the information that was of particular concern to the Authority.
In assessing whether information is credible for the purposes of s 473DD(b)(ii) of the Migration Act, the Authority is required to consider whether the information is ‘capable of being believed’ and not whether it is in fact true: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [62], [75].
There is nothing in the Authority’s reasons, and the applicant has not identified anything other than his own disagreement with the finding, to indicate that the Authority misunderstood the term ‘credible’ for the purposes of s 473DD(b)(ii) of the Migration Act. I accept the Minister’s submission that the Authority should be understood to have found that the new information was not capable of being believed.
The reasons given by the Authority show a plausible justification for this finding. I note in particular that the Authority did not simply find that the new information was not credible because it had not been raised earlier, but considered the apparent importance of the new information to the claims advanced by the applicant and the opportunities he had to raise the new information previously. It was open to the Authority to find that the applicant had not satisfied the Authority that the new information was credible personal information in circumstances where the applicant offered no explanation to the Authority about why it should be considered to be credible and where the Authority formed the view that, had his claimed comments caused the TVMP to take personal offence against him, he would have advised the delegate in the context of the claims he advanced.
I am not satisfied that the Authority misinterpreted or misapplied s 473DD(b)(ii) of the Migration Act.
Particular (c) flows from particular (b). The High Court held in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [11]-[12] that the Authority is required to first assess new information provided by an applicant against the requirements of both s 473DD(b)(i) and (ii), and if the requirements of either or both of those subparagraphs are satisfied, to take its findings into account in assessing whether there are exceptional circumstances to justify considering the new information for the purposes of s 473DD(a) of the Migration Act.
In circumstances where the applicant alleged an error in relation to the Authority’s approach to s 473DD(b)(ii) of the Migration Act, the applicant submitted that that alleged error also led to error in the Authority’s findings for the purposes of s 473DD(a) of the Migration Act.
Given that I have found that the Authority did not misapply or misinterpret s 473DD(b)(ii), it follows that I also find that the alleged error in the Authority’s approach to s 473DD(a) is not established.
Particular (d)
The applicant submitted that the Authority’s conclusions that the applicant was not a person owed protection under ss 36(2)(a) and 36(2)(aa) of the Migration Act show that it erred in interpreting or applying 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’ within the meaning of s 36(2)(aa) of the Migration Act. The applicant submitted that the Authority’s findings were not open to it having regard to:
(a)the evidence of incidents of torture in Sri Lanka;
(b)the evidence of an entrenched culture of torture in Sri Lanka;
(c)the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka;
(d)the applicant’s past support for the TNA, which may mean he will continue to work as a TNA supporter in the future; and
(e)that the applicant would be charged for breaching the Immigrants and Emigrants Act and may be briefly imprisoned on his return to Sri Lanka.
The applicant submitted that a real chance of harm can be small. While Counsel for the applicant acknowledged in his oral submissions that the Court cannot engage in merits review, he submitted that the Authority’s conclusion is only explicable if it required greater than a small real chance before being satisfied that the applicant met the criteria in s 36(2)(a) and s 36(2)(aa) of the Migration Act.
The Minister submitted that the applicant seeks impermissible merits review by this particular. The Minister submitted that the Authority set out the relevant tests in its reasons and its reasoning was based on findings of fact or inferences of fact supported by logical grounds. The Minister submitted that there is no basis to conclude that the Authority misunderstood the relevant tests.
It is not controversial that a real chance of harm is one that is not remote and it can be less than 50%: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62. There is nothing in the Authority’s reasons to indicate that it misunderstood or misapplied the relevant law in any way. The Authority correctly identified the meaning of ‘well-founded fear of persecution’ at [10] of its reasons, including that there must be a ‘real chance’ that the person would be persecuted and that persecution includes ‘serious harm’. The Authority correctly identified the complementary protection test at [58] and [59] of its reasons and identified that ‘real risk’ and ‘real chance’ have been found to be the same standard, citing Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33.
The Authority’s reasoning does not demonstrate any misunderstanding or misapplication of the tests that it identified.
Much of the evidence that the applicant relies on in advancing this particular has already been addressed in the context of ground 1 above. The first three matters identified all relate to evidence in relation to torture. I found above that the Authority considered the relevant information before it in relation to tortured and I am satisfied that the Authority made findings based on the relevant information that were open to it on the evidence. I also found above that there was no claim before the Authority that the applicant would engage in any future TNA activities. The Authority considered the treatment that the applicant may expect to face as a person who breached the Immigrants and Emigrants Act, including that he might be imprisoned for up to a few days, and having regard to country information, was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm. The Authority’s findings were open to it on the evidence and were not illogical or irrational in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [131], [135].
Particular (d) does not establish jurisdictional error.
Conclusion in relation to ground 2
The applicant has not established that the Authority misinterpreted or misapplied relevant law. Ground 2 is not established.
GROUND 3: WHETHER THE AUTHORITY WAS LEGALLY UNREASONABLE OR MADE FINDINGS WITHOUT A LOGICALLY PROBATIVE BASIS
By ground 3, the applicant asserts that the Authority acted in a way that was legally unreasonable or made findings without a logically probative basis. There are two particulars to the ground.
Particular (a)
The applicant submitted that the Authority acted legally unreasonably in not accepting that the applicant was assaulted by the TMVP three or four times during the 2012 election period.
The Authority said at [17] of its reasons (emphasis added):
In relation to his work in canvassing for the 2012 local TNA candidate, the applicant stated at his PV interview that he received a letter from the TMVP warning him not to support the TNA when some members came to his house and handed it to his wife as the applicant was not home. As a result of this, he ceased engaging in canvassing directly by going house to house but continued supporting the local candidate “indirectly”. Other than stating that he ceased going to house to house to canvass in support of the TNA candidate, the applicant did not further explain what he meant by continuing only “indirectly” with supporting the candidate. I understand that the applicant would have continued by providing other campaigning type assistance for the local TNA candidate where he was not visibly seen to promote that candidate. In that context, I accept that the applicant started canvassing for a local TNA candidate in 2012 and then ceased going personally from house to house to canvass for that candidate, engaging only in “indirect” support for that candidate because, of this threat and that he therefore avoided any further attention from the TMVP. However, I do not accept that the applicant was assaulted by TMVP on 3 or 4 times during this election period for assisting the local TNA candidate as claimed in his written statement. He did not provide any supporting evidence regarding any such assaults during his PV interview. His evidence that he had ceased direct canvassing is inconsistent with his claim that he was assaulted during this period for having assisted the local TNA candidate by doing undertaking such canvassing work.
The applicant submitted that it was not clear what kind of supporting evidence the applicant could have provided and that it was unclear what basis the Authority could have for rejecting the claim that the applicant had been assaulted during the 2012 election in circumstances where it accepted that he canvassed for the TNA before being threatened and where it accepted that he was assaulted during the 2010 election campaign.
The Minister submitted that the Authority gave reasons for rejecting the claim, in particular, that the applicant did not refer to this claim in his protection visa interview and that the claim that he was assaulted three or four times was inconsistent with his evidence that he ceased canvassing in response to the threats.
The Minister further submitted that the applicant has not established that the ultimate decision was one that no reasonable decision-maker could make on the material before the Authority. The Minister submitted, based on Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [33], [35], that the relevant question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences supported by logical grounds.
There is nothing unreasonable, illogical or irrational in the Authority’s rejection of the applicant’s claim to have been assaulted on three or four occasions during the 2012 election campaign, or in its overall conclusion. The Authority’s reasons at [17] need to be read in context, including the whole of the paragraph and not just the emphasised portion, which is what the applicant relies on. It is apparent when this paragraph is read in context that the Authority has provided an intelligible justification for its finding and it cannot be said to be unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 or illogical or irrational in sense described in SZMDS. I also accept that the applicant has not established that the decision overall, including its lack of satisfaction that the applicant met the relevant criteria, was illogical or irrational.
Particular (b)
Particular (b) overlaps with ground 2(d) and asserts that the Authority’s conclusions were unreasonable for the same reasons as the applicant asserted that the Authority had misapplied the relevant statutory test.
The same issues arise in relation to the consideration of grounds 2(d) and 3(b) and for the same reasons that I found ground 2(d) was not established, I also find that ground 3(b) is not established.
Conclusion in relation to ground 3
The applicant has not established that the Authority made findings that were unreasonable or which lacked a logically probative basis.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 20 September 2024
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