FTE17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 496
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FTE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 496
File number: MLG 2859 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 6 June 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa – where adverse credibility findings were made by the Authority – whether the Authority fell into jurisdictional error by reason of a misapplication of the relevant law – consideration of the Authority’s application of ss 473DC and 473DD of the Migration Act 1958 (Cth) – consideration of the application of the ‘real chance’ and ‘real risk’ test by the Authority – whether Authority failed to consider relevant considerations – whether findings made by the Authority were legally unreasonable or lacked a probative basis – court cannot engage in impermissible merits review – no jurisdictional error emerges – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36(2), 473DC, 473DD Cases cited: AMT15 v Minister for Immigration and Border Protection [2018] FCA 366
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 289
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 124 Date of last submission/s: 21 March 2024 Date of hearing: 21 March 2024 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Mano Associates Solicitor for the First Respondent: Mr K Sypott of Australian Government Solicitor ORDERS
MLG 2859 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FTE17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 14 December 2017 affirming a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Safe Haven Enterprise Visa (subclass 790) (‘the SHEV’).
BACKGROUND
The applicant is a Sri Lankan citizen who arrived in Australia on 6 September 2012.[1]
[1] Court book at pages 42 and 49.
Application for a SHEV on 1 October 2016
The applicant applied for a SHEV on 1 October 2016.[2] In the application, the applicant made protection claims on the basis of his suspected involvement with the LTTE and his consequential repeated beatings by the Sri Lankan Army.[3]
[2] Court book at page 26.
[3] Court book at pages 60 and 61.
The applicant attended an interview with an officer from the Department of Immigration and Border Protection (‘the Department’) on 22 March 2017 (‘SHEV interview’).[4] The applicant provided a number of documents at the SHEV interview in support of his claim.[5]
[4] Court book at page 97.
[5] Court book at pages 100 and following.
On 18 May 2017, the delegate refused the applicant’s application for a SHEV.[6]
[6] Court book at page 109.
Referral to the Authority on 23 May 2017
On 23 May 2017, the delegate’s refusal decision was referred to the Authority pursuant to Part 7AA of the Migration Act 1958 (Cth) (‘the Act’).[7]
[7] Court book at page 128.
By email dated 20 June 2017, the applicant’s representative provided written submissions to the Authority.[8]
[8] Court book at pages 142 -163. An earlier version was sent by email dated 19 June 2017.
On 14 December 2017, the Authority affirmed the delegate’s decision and refused to grant the applicant a SHEV.[9]
[9] Court book at page 167.
AUTHORITY’S DECISION
The Authority’s decision of 14 December 2017 is set out at pages 168 to 182 of the court book.
At paragraphs [3] to [15], the Authority identified the information before it, including new information provided by the applicant in June 2017. In relation to information deemed to be ‘new information’, the IAA ultimately determined that it would not have regard to that information.
Relevantly, this included information in the applicant’s June submission that he believed that his father and brother had been taken by security forces in January 2017 because of a data breach. The applicant claimed that his father had been beaten and tortured and questioned as to the applicant’s whereabouts and the applicant’s LTTE links. In relation to this new information, the Authority was not satisfied that it was credible personal information and also was not satisfied that there were exceptional circumstances justifying having regard to this new information.[10]
[10] Authority decision record dated 14 December 2017 at paragraph [11].
The Authority also considered the new information provided about the applicant’s father’s brother’s family and other close relatives who had gone to South India due to death threats. The Authority also considered the applicant’s claims that most of his relatives have registered as refugees for more than 10 years and that they could trace the applicant’s whereabouts through his family history.[11] Ultimately, the Authority concluded that the applicant had not satisfied the requirements of section 473DD(b) or (a) in relation to this new information and did not have regard to it.
[11] Authority decision record dated 14 December 2017 at paragraph [13].
The Authority went on to summarise the applicant’s protection claims at paragraph [16], before making a number of adverse credibility and factual findings, including that it did not accept the applicant’s claims of connection to the LTTE, nor that he was of interest to the authorities in Sri Lanka prior to his departure.[12]
[12] Authority decision record dated 14 December 2017 at paragraphs [20] to [41].
As a result of these findings by the Authority, the applicant did not meet the refugee criteria with respect to his ethnicity or imputed political views. Similarly, the Authority did not consider that the applicant’s religion, failed asylum seeker status, illegal departure or involvement in the data breach by the Department to meet the definition of refugee in section 5H(1) of the Act. As such, the applicant did not meet the requirements of section 36(2)(a) of the Act.[13]
[13] Authority decision record dated 14 December 2017 at paragraph [81].
The Authority also did not consider the applicant to face a real risk of significant harm if he were to return to Sri Lanka and therefore he did not meet the complementary protection criteria in section 36(2)(aa) of the Act.[14] The Authority therefore ultimately affirmed the delegate’s decision not to grant the applicant a SHEV.
[14] Authority decision record dated 14 December 2017 at paragraphs [94] and [95].
PROCEEDINGS IN THIS COURT
The applicant initially filed his application for judicial review on 27 December 2017, and thereafter filed an amended application on 29 February 2024 upon obtaining legal representation. The amended application contains three grounds of review, with extensive particulars.
At the hearing, counsel for the applicant and the Minister’s representative made oral submissions.
GROUNDS OF REVIEW
As stated, by his further amended application filed on 29 February 2024, the applicant relied upon three grounds of review. There is some overlap between some aspects of these grounds.
I will consider each of these grounds in turn, although to the extent that some particulars overlap, I will deal with them together.
Ground 1
By ground 1, the applicant asserts that:
1.The Second Respondent (“the Authority”) fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
a)The Authority found that new information, that the Applicant’s father and brother had been interrogated in or about January 2017 and that the Applicant believed that this was the result of data about him being released mistakenly by the First Respondent’s (“the Minister’s”) department, was not “credible personal information” within the meaning of section 473DD(b)(ii) of the Migration Act 1958 (“the Act”). It thereby erred in interpreting or applying the term “credible personal information”. (CB 170, [9]-[12])
b)By reason of the error in particular (a) to this Ground, the Authority erred in determining that there were no “exceptional circumstances” within the meaning of section 473DD(a) of the Act, such as to permit the Authority to consider the new information. (CB 170, [11])
c)The Authority found that new information, that the Applicant fears that “The army will retrace him through family history and records and force and identify him as LTTE and torture and kill him” and “is fearful for his parents and siblings too as they will face the same situation” (CB 171, [13]) did not meet the requirements of section 473DD(b), but it was not reasonably open to the Authority to find that it was “credible personal information” within the meaning of section 473DD(b)(ii) of the Act.
d)By reason of the error in particular (c) to this Ground, the Authority erred in determining that there were no “exceptional circumstances” within the meaning of section 473DD(a) of the Act, such as to permit the Authority to consider the new information. (CB 171, [14])
e)The Authority erred in interpreting or applying section 473DC of the Act in rejecting or attaching no weight to the corroborative letters from the Parish Priest and from the Human Rights Organisation of Justices of the Peace, without seeking new information from the authors of those letters about their knowledge of the Applicant’s situation. (CB 82, 84; CB 174-175, [37]-[38]).
f)The Authority erred in interpreting or applying the terms “real chance” and “well-founded fear” of persecution in section 5H(1), 5J(1) and 36(2)(a) and “real risk” of significant harm in section 36(2)(aa) of the Act, shown by its finding that the Applicant did not have a real chance of suffering relevant harm as an illegal emigrant, despite the volume of information before it relating to the prevalence and culture of torture. (CB 118-121, 161; DFAT report, 4.12-4.22)
Particulars (a) to (d)
Particulars (a) to (d) in ground 1 of the applicant’s application assert an error by the Authority in the application of section 473DD of the Act. Namely, the applicant contends that the error by the Authority in relation to section 473DD of the Act lay in its failure to identify new information before it as ‘credible personal information’ pursuant to section 473DD(b)(ii), thus exempting it from consideration by the Authority pursuant to section 473DD(a) of the Act.
The specific information referred to by the applicant in relation to this ground included information about his father and brother being interrogated in 2017 by Sri Lankan authorities, and of his fears for himself and his family as a result of being traced back to the LTTE. The applicant submits that the Authority ought to have considered this information as satisfying section 473DD(b)(ii) of the Act, had it correctly understood and applied the section.[15]
[15] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [22].
In support of this aspect of ground 1, the applicant relies upon the decision of CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (‘CSR16’). In CSR16, one of the grounds of review gave rise to the question of whether the Authority has misapplied the criteria in section 473DD(b)(ii) in considering whether to have regard to ‘new information’. Relevantly, at [36], Justice Bromberg stated:
… The appellant contended that ‘the Authority effectively pre-judged the question of whether the appellant had a subjective fear of the relevant harm’, the answer to which could only be given ‘once the Authority had before it the whole of the material that was relevant to the review.
Ultimately, the issue before the court in CSR16 came down to the meaning of the word ‘credible’ in section 473DD(b)(ii). Justice Bromberg summarised how the Authority dealt with the information before it as follows, at [39]:
… It was not in contest that the Authority was engaged in a process of assessing the veracity of the ‘new information’, not on its face, but by reference to ‘review material’ which had been received by the Authority. By that process, the Authority came to an ultimate or final view that the ‘new information’ was not to be believed and therefore was not information that could be received for consideration in accordance with s 473DD(b)(ii). The nature of the assessment made by the Authority indicates that the Authority proceeded on the basis that a condition of engagement of s 473DD(b)(ii) is the Authority’s satisfaction that the ‘new information’ is true. That reflects the sense in which the Authority construed the word ‘credible’.
Ultimately, Justice Bromberg found that in adopting this approach, the Authority had erred. Relevantly, at [41] and following, his Honour said:
41In my view all that the ‘credible’ element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the ‘new information’ is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the ‘new information’ is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether ‘new information’ should be received by the Authority so that it may be considered at the deliberative stage.
42The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word ‘credible’ is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is ‘evidently not credible’ … that fails to meet the credibility requirement imposed by s 473DD(b)(ii) criteria.
43The Authority determined that the ‘new information’ that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the ‘new information’ was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In doing so the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error …
(Emphasis added)
It is submitted for the applicant that the same error was made in this case.
Moreover, the applicant submits that the error in relation to the application of section 473DD(b)(ii) also affected the Authority’s error in relation to considering whether exceptional circumstances existed for the purpose of section 473DD(a). In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) considered the nature of the Authority’s task under section 473DD having regard to the context in which section 473DD(b)(ii) was introduced into the legislation. Relevantly, their Honours said, at [11] and [12]:
11Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criteria specified in s 473DD(a). … If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). …
12The result … is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
Having regard to this analysis, it is submitted for the applicant that if, as asserted, the Authority did not properly apply section 473DD(b)(ii), then the assessment of section 473DD(a) is also affected. This, the applicant submits, amounts to a jurisdictional error.
The Minister refutes this analysis and submits that the Authority did apply section 473DD correctly.[16] Relevantly, the Minister submits that the Authority does not need to engage in any ‘formulaic consideration’ of section 473DD(b) and that no error can be inferred from the Authority’s reasons. In APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79], Justice Markovic noted that:
… It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether ‘exceptional circumstances’ exist for the purposes of s 473DD(a)
[16] Minister’s Outline of Submissions filed on 15 March 2024 at paragraphs [30] and [34].
Accepting that, the issue in this case is not whether the Authority considered whether the new information provided was credible personal information before considering whether there were exceptional circumstances. The question raised by ground one is whether the Authority, in considering whether the information was credible personal information, applied the wrong test.
Having found that the new information did not meet the criterion in section 473DD(b)(i) at paragraph [10], the Authority goes on at paragraph [11] to consider whether the criterion in section 473DD(b)(ii) is met. The Authority concluded that it was not, in circumstances where although the applicant was clearly aware of the data breach at the time of his protection interview, and the alleged incidents with his brother and his father had already occurred, also prior to the protection visa interview, no mention of these matters had previously been made. It is apparent that the Authority did not consider the substance of the claims and find that they were inherently incredible, but rather that it was the fact that he made no reference to these claims in his interview when he could have, and the fact that no explanation was provided in the written submission filed on his behalf, explaining why he had not made reference to these matters earlier, that the Authority ‘doubted’ the genuineness of the claims.
As such, when read fairly, it is apparent that the Authority properly assessed the credibility of the claims in the sense articulated in CSR16 and formed the view that for the reasons stated, the information about the applicant’s brother and father was not credible in the sense that it was not ‘capable of being accepted by the Authority as truthful (or accurate or genuine)’.
Therefore, there was no error in the Authority’s consideration of these issues. Further, there was therefore no error to infect the Authority’s consideration of whether the criterion in section 473DD(a) was met.
Similarly, in relation to the information about the army finding him due to his family history and his fear for his family, the Authority’s conclusions were about the genuineness, not the veracity, of the applicant’s claims. The Authority was not making a finding about the truthfulness of the claims, but rather about whether they were credible in the sense of whether they were capable of being accepted as truthful or genuine. This is evident from the Authority’s reasoning at paragraph [14] where it focussed on the fact that the information could have been provided earlier, that the applicant was repeatedly advised of the need to provide all relevant information, that he had legal representation and the absence of any independent corroboration in relation to these claims.
Consequently, no error is made out in the Authority’s application of section 473DD(b) of the Act to these claims. Nor therefore, is the Authority’s decision under section 473DD(a) affected in any adverse way as claimed.
Particular (e)
By particular (e) of ground 1, the applicant asserts that the Authority erred in interpreting or applying section 473DC of the Act, by not seeking new information from the authors of two letters provided by the applicant, namely:
(a)a letter from the Human Rights Organisation of Justices of the Peace; and
(b)a letter from a Parish Priest.
Although the applicant acknowledges that there is no obligation upon the Authority to seek new information pursuant to section 473DC of the Act, the decision not to do so, must nevertheless be exercised reasonably.[17] In the circumstances, the applicant submits that the Authority’s ‘disregard’ for the letters was not reasonable without making an attempt to seek further information from their authors due to the seriousness and nature of the claims contained therein.[18] It was particularly noted that a concern for the applicant’s security by a human rights organisation ought, on its face, to have been taken seriously.
[17] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [29], citing Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21] and Minister for Immigration and Citizenship v Li [2013] HCA 18 at [67]-[68].
[18] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [28].
In support of this aspect of ground 1, the applicant asserts that the reasoning in AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 (‘AMT15’) applies. In that case, the applicant argued that the Refugee Review Tribunal (‘the Tribunal’) had erred in not making inquiries as required by law in relation to a letter that the applicant had submitted. That decision was related to an application under Part 7 of the Act. Within Part 7, section 424 of the Act provides that the Tribunal may get any information that it considers relevant.
The applicant in AMT15 had provided a letter from a Sri Lankan Member of Parliament. The letter appeared to be on Parliamentary letterhead and contained, among other things, telephone contact numbers. Relevantly, the Tribunal in that case said that it had considered the letter but that it did not overcome the Tribunal’s concerns about the credibility concerns of the applicant. Relevantly, Tracey J noted that the Tribunal did not say why this was so. Moreover, his Honour noted, at [38]:
… [the Tribunal] did not, for example, suggest that the document was bogus. Its authenticity could have been confirmed by a telephone call or a facsimile transmission. Neither of these steps was taken. The Tribunal simply said that it did ‘not give evidentiary weight to [the document].’ …
The court went on to say, at [39]:
… There was nothing on the face of the letter to suggest that it was other than what it purported to be. It was addressed to the applicant in his capacity as an office holder in the TNA. It contained an agenda for a TNA meeting which AMT15 was apparently expected to attend on 27 May 2012 at a nominated venue at a nominated time. This letter, had it been accepted by the Tribunal, had the potential to bolster AMT15’s claims to have been an active member of the TNA.
After considering a range of other decisions in which the authenticity of letters was in issue or in which the applicant had asked the Tribunal to contact the author for further information, Tracey J went on to say at [45]:
The document, presently under consideration, was of a markedly different character. It was not a statement or a testimonial which had been prepared for the ostensible purpose of aiding an applicant’s refugee claims. It pre-dated the events of the evening of 27 May 2012. It appeared on official letterhead and contained numerous contact details for the author. Although there was some country information before the Tribunal (to which it did not refer in its reasons) relating to the prevalence of the production of counterfeit documents for the purpose of identity fraud, there was no evidence before the Tribunal which suggested that documents of the kind presently under consideration were sometimes fraudulently produced to bolster cases relating to refugee claims. The authenticity of the letter was not questioned. Yet the Tribunal, having ‘considered’ the document declined to give any weight to it. The inconsistencies which led to the Tribunal’s wholesale rejection of AMT15’s credibility arose from AMT15’s account of events which occurred after the TNA meeting on 27 May 2012. Had the authenticity of the letter been established by a telephone call or fax transmission, it would have had the potential to corroborate AMT15’s claims to have been an active participant in the TNA. This may have led the Tribunal to adopt a more benign assessment of AMT15’s credibility. It is one thing for a decision-maker, having examined a particular document, to conclude that its contents were insufficient to overcome his or her concerns about an applicant’s credibility; it is another altogether for the decision-maker to decline to place any weight on the contents of the document without explaining why the corroborative material in the document should be discounted or ignored.
The applicant concedes that AMT15 was decided under Part 7 not Part 7AA of the Act. However, the applicant submits that it is all the more important for the Authority to reasonably exercise its power under section 473DC in circumstances where there is no right to an interview and no interview occurred in this matter.
The letter from the Human Rights Organisation of Justices of the Peace at page 82 of the court book is dated 10 December 2012 and refers to a complaint made by the applicant’s father on 18 June 2012 ‘on the threat to the security of his son’. It then refers to the applicant’s displacement in 1990 and again in 1996 and says ‘[h]is native place Palaly was taken under security zone by the security forces. His security has been threatened and it was due to unsecurity he fled to your country’.
Particular (e) of ground 1 also relies upon a further letter on Roman Catholic Church letterhead dated 1 December 2012, located at page 84 of the court book. It states that the applicant has been a member of the parish for 22 years after having been displaced ‘due to the ethnic war’. It further states that ‘[d]ue to the arising fear of death by the security personal and the poverty of the family, he fled to your country’.
The Authority dealt with these letters at paragraphs [37] and [38] of it’s decision in some detail. Unlike the letter in AMT15, these letters do not and could not corroborate the applicant’s claims. As noted by the Authority, to the extent that they refer to the applicant’s fear of harm, no specifics are provided. Moreover, they make no express reference to the applicant being interrogated by the authorities or being wanted for or suspected of LTTE membership or association. Nor do the letters make any reference to the applicant having been severely beaten.
In relation to the letter from the Roman Catholic Church, the Authority did not reject the letter or say that it was not an authentic letter. Rather, for the reasons stated, it found that it did not support the claims now made by the applicant. This finding was entirely open on the material before the Authority.
In relation to the Human Rights Organisation of Justices of the Peace letter, the same concern is raised regarding the lack of detail about the applicant’s claims and for this reason, the Authority said it placed little weight on that letter. Again, that approach was open to the Authority and does not disclose jurisdictional error.
When regard is had to the statutory scheme in which section 473DC arises, there was no obligation on the Authority to contact the authors of the letters and seek further information from them about the applicant’s claims. This is particularly so considering that the applicant was represented, and submissions were made on his behalf. Moreover, as noted, the relevant letters were obtained after the applicant had arrived in Australia and many years before his protection visa hearing and indeed before the submissions were made on his behalf to the Authority. It was open to the applicant to obtain further information from the individuals who wrote the letters to provide more detail about the treatment he alleges he suffered. Alternatively, it was open to the applicant through his representatives to request that the Authority call the authors of the letters to obtain clarification. It is not for the Authority to seek further information to substantiate the applicant’s claim. A failure to do so, does not render the Authority’s treatment of the said letters affected by jurisdictional error.
Nor does the fact that the Authority came to a different conclusion on this issue to that of the delegate alter my reasoning.
It is also important, in considering this aspect of ground 1, to note that these letters were produced as evidence corroborating the applicant’s claims. The Authority found that they did not do that. That finding was open to the Authority. It was not for the Authority to improve the evidence produced by the applicant to corroborate his claims. This is to be contrasted with the reasoning in AMT15 in which the issue was the authenticity of the document, which could readily be determined by a call to the purported author. In this case it was not the authenticity of the documents that was at issue, but rather the absence of corroborative evidence in the letters.
For each of these reasons, particular (e) of ground 1 is not made out.
Particular (f)
By particular (f) of ground 1, the error of law asserted by the applicant lies in the Authority’s misapplication of ‘real chance’, ‘well-founded fear’ and ‘real risk’, in accordance with the meaning of those terms as they appear in the Act.
In particular, the applicant asserts that the Authority’s consideration that the applicant did not have a ‘real chance’, or was not at ‘real risk’, of suffering harm whilst detained in prison as a result of his illegal departure from Sri Lanka, represented a misapplication of the law in circumstances where the Authority had before it country information from a number of sources that suggested a prevalence and culture of torture.[19]
[19] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [32].
The applicant’s submissions emphasise the comments made in reports by the US Department of State, Amnesty International and the Australian Department of Foreign Affairs and Trade, all of which were referred to by the delegate. The issues of a pervasive culture of torture and abuse by the authorities in Sri Lanka as revealed by these authorities were submitted by the applicant to have not been engaged with by the Authority,[20] as revealed by its findings as stated above.
[20] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [37].
It is well settled that a ‘real chance’ is one that is not remote, even if it is less than 50%. Therefore, a real chance may be a small but real chance of suffering harm. It is also well settled that the test of ‘real risk’ for the purposes of section 36(2)(aa) of the Act is the same as the ‘real chance’ test.[21]
[21] BXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 289 at [43] citing Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62.
The applicant asserts that when regard is had to the material before the Authority, the conclusion reached that there was a real chance of harm (or a real risk in relation to the complementary protection provisions) was not open. The applicant points to various country information that was before the Authority and which refers to risks of torture and mistreatment of returnees. In particular, after referring to specific aspects of that country information, the applicant asserts that the Authority simply did not engage with this material. The applicant asserts that had it done so, it may not have reached the conclusion that there was no real chance (or real risk) of harm.
At the heart of the applicant’s claim is an assertion that the Authority misapplied the correct test, and/or that the Authority’s findings were illogical or irrational.
In addition, at ground 2 particular (c), the applicant asserts that the Authority failed to consider the relevant country information which I will address below in considering ground 2.
When the Authority’s reasons are read fairly and as a whole, there is no basis on which to conclude that the Authority did not understand or misapplied the ‘real chance’ test. The Authority set out the relevant statutory provisions by which it had to determine this matter at paragraphs [42] and [43] (and in relation to ‘real risk’ at paragraphs [82] and [83]).
This ground relates to the risk of harm to the applicant arising from his status as an illegal emigrant in circumstances of a prevalence and culture of torture.
At paragraph [62], the Authority accepted that if the applicant returned to Sri Lanka, it would be as a failed asylum seeker but concluded that he would not face a real chance of harm as such. The authority then went on at paragraphs [64] to [66] to set out the reasoning for this. First, the Authority referred to the fact that it did not accept that the applicant had a profile that would bring him to the attention of the Authorities. Secondly, at paragraph [65], the Authority referred to the fact that the DFAT report states that thousands of Tamils have returned since the end of the civil war, including failed asylum seekers from Australia and that those who suffered harm were people who had substantial links to the LTTE or outstanding warrants.
At paragraph [66], the Authority went on to say:
Having regard to the country information in the review material and in particular in the DFAT reports in the review material, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities because he has applied for asylum in Australia.
The Authority then went on to consider any harm to which the applicant might be exposed as a result of having departed illegally from Sri Lanka at paragraphs [69] to [79] and concluded, at paragraph [80], that it was not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future if he were to return to Sri Lanka.
Relevantly, the Authority noted that:
(a)country information indicated that whilst he has committed an offence under the Immigrants and Emigrants Act (‘the IEA’) and will face questioning at the airport and possible charges and fines, the IEA was applied consistently to all people irrespective of their ethnicity or religion and importantly, the Authority noted ‘[f]urther, the country information is that they are not subject to mistreatment during processing at the airport’.[22]
(b)the country information further states that if a person pleads guilty, they will be fined and then are free to go, and if they plead not guilty they are bailed and may require a family member to act as a guarantor and collect them and if that were required, the Authority found that the applicant could rely on his family to assist;[23]
(c)while there are reports of arrests and torture that related to know former LTTE members and in circumstances where the Authority did not accept that the applicant or his family was an LTTE member or had an anti-government profile, it did not accept that the applicant would be of interest to the authorities.[24]
[22] Authority decision record dated 14 December 2017 at paragraphs [70] to [71].
[23] Authority decision record dated 14 December 2017 at paragraphs [72] to [73].
[24] Authority decision record dated 14 December 2017 at paragraph [74].
At paragraph [75], the Authority expressly stated that having regard to country information, it did not accept that he faced a real chance or torture, interrogation or mistreatment on arrival in Sri Lanka or during any interrogation. At paragraph [76], the Authority accepted that if he arrived on a weekend, the applicant may be held in prison until he could be brought before a magistrate. The Authority then said:
However, DFAT has assessed risk of torture or mistreatment is low and considered with the applicant’s profile and circumstances I do not accept the applicant faces a real chance of torture, interrogation or mistreatment upon arrival, during questioning or brief detention.
The Authority went on to say that it considered the prison conditions to be generally poor, overcrowded and unsanitary but again did not consider there was a real chance that the applicant would face torture, assault or mistreatment if held on remand or during any brief detention.
The applicant in his submission, points to various country information before the Authority which relates to the risk of torture, arbitrary arrest and mistreatment and says that the Authority did not engage with this information. Ultimately, this does not support a finding of jurisdictional error.
The Authority concluded that the applicant did not have a profile which would bring him to the attention of the Sri Lankan authorities. As such, the Authority concluded that he was not at risk of harm from torture, arbitrary arrest and mistreatment. It was therefore not necessary for the Authority to expressly refer to this material. The conclusions reached by the Authority were reasonably open and there is a logical and probative basis upon which those conclusions were reached. The question of what country information will be relied upon and the weight to be given to it are matters for the Authority.
Ultimately, this ground rises no higher than seeking impermissible merits review. It may well be that another decision maker having regard to those matters identified in the applicant’s submissions may have come to a different conclusion. That does not warrant a finding that the conclusions reached by the Authority in this instance were otherwise unreasonable or illogical. They were, with respect in my view, reasonably open on the material before it.
For these reasons, this aspect of ground 1 is not made out.
Consequently, as none of the particulars identified in ground 1 have been made out, ground 1 is not established.
Ground 2
By ground 2 the applicant asserts that:
2.The Authority fell into jurisdictional error in that it failed to consider relevant considerations.
Particulars
a)In assessing the Applicant’s evidence of the interrogations and beatings he had undergone, the Authority did not consider whether some inconsistencies in his evidence were to be expected when what he said had happened to him was traumatic, not willingly to be recalled, and some of this was nearly seven years before the Applicant was interviewed by the Minister’s delegate. (CB 173, [27])
b)The Authority said that the Applicant had said that when he was detained in June 2012, “they beat him and did not ask him any questions. …it does not make sense that they would not ask him any questions…” (CB 173, [30])
But the Applicant had said that he was initially beaten without being questioned, but after a savage beating he was questioned about where were the rest of the weapons that his employer had given him. (CB 72, [21] He said that the army had earlier told him, in 2010, that they knew that his employer was a member of the LTTE. (CB 71, [18])
The Authority therefore, in breach of sections 473CC(1) and 473DB(1) of the Act and the provisions of Part7AA of the Act generally, did not consider an important part of the Applicant’s written statement.
c)Further to Particular (f) to Ground 1, in breach of sections 473CC(1) and 473DB(1) of the Act and the provisions of Part7AA of the Act generally, the Authority did not consider the material relating to torture and abuse of human rights which was in the referred material. (CB 118-121; 161; DFAT report, 4.12-4.22)
Particulars (a) and (b)
The crux of the applicant’s assertions in particulars (a) and (b) of ground 2 is that in considering the applicant’s claims of interrogation and detainment by the authorities in Sri Lanka, the Authority failed to consider whether the applicant’s evidence may have been affected by the traumatic nature of these memories and the large gap in time between the alleged events and his statements about them. In so doing, and then in making adverse credibility finding against him due to certain inconsistencies in the applicant’s evidence, the applicant claims that the Authority made an error of law in that it failed to consider important information and material before it.
The fact that the subject matter of the applicant’s claims were distressing and had occurred over seven years before the expression of the claims in the SHEV interview, were factors submitted by the applicant to be obvious to the Authority and therefore squarely arose for its consideration in assessing the credibility of the applicant.[25] Further, the Authority’s consideration, and in part rejection, of the applicant’s claims regarding his detention and beating in 2012, were submitted to constitute an ‘important error about important evidence’, as it informed broader findings about the applicant’s protection claims.[26]
[25] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [40].
[26] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [44].
It is well settled that the Authority is required to consider claims which are clearly articulated or which arise on the material before it. As noted by the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [24] to [25]:
24… the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder.
25It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. …
The Authority stated that the applicant’s claims about his employer’s death and his LTTE connections was ‘vague and inconsistent’ at paragraph [20]. The Authority then went on to identify a range of the matters which led it to this conclusion at paragraphs [21] to [30].
The Authority also found the applicant’s account of the beatings in 2012 to lack credibility and then proceeded to set out the reasons for reaching this view at paragraphs [31] to [36].
The applicant now asserts that the Authority ought to have considered whether these inconsistencies and credibility issues may have been caused by the traumatic nature of the incidents and the time which had lapsed since the incidents occurred.
There are a number of difficulties with this submission. First, the fact that the Authority did not expressly refer to whether it took into account reasons why the applicant’s evidence might be inconsistent, is not determinative of the fact that the Authority did not give regard to whether there might be a reasonable explanation for the inconsistencies in the applicant’s evidence. But in any event, and importantly, the applicant did not raise these matters as an explanation for the inconsistencies in his evidence.
It was a matter for the Authority to consider the applicant’s claims, actual and clearly emerging, to weigh the evidence and to form a view as to the veracity of those claims. That is what the Authority did in this case and no error emerges.
The applicant submits that in dealing with the applicant’s evidence about his claim to have been beaten in 2012, the Authority misunderstood his claims and therefore did not consider them in discharge of its statutory task. Relevantly, the applicant says that the Authority understood that he had claimed that he had been beaten but not asked any questions and that this misunderstanding contributed to the Authority’s conclusion that the applicant’s claim in this regard lacked credibility. The applicant says that it is clear from his statement that he was initially beaten and then a soldier asked him about the location of the rest of the weapons.[27] It was submitted for the applicant that the Authority’s failure to consider his actual claims was significant as this was one of the reasons why the Authority ultimately did not accept that the applicant had been detained, interrogated and beaten. This is not supported by a fair reading of the Authority’s reasons.
[27] Applicant’s Outline of Submissions filed on 28 February 2024 at paragraph [42], referring to the Court book at page 72.
At paragraphs [30] to [32], the Authority said:
30.The applicant claimed the army took him again (sic) June 2012 because they found a hidden cache of weapons about 2 kilometres from his home. When they took him from his home, they beat him and did not ask any questions. I consider his account lacks credibility because it does not make sense that they would not ask him any questions. Further, the applicant would not know for what he was being blamed. Further, given the authorities lack of interest in the applicant for two years, it does not make sense they would only suspect him of hiding weapons.
31.Further, I consider the applicant’s account of the beating in 2012 lacks credibility. If he had been beaten for many hours from early morning to the evening by five soldiers, it is not credible that he would not have needed medical attention or hospitalisation. The applicant claimed the army dropped him home at 7:30pm.
32.Further, it does not make sense that he would report daily for six weeks but then decide to stop reporting and flee Sri Lanka.
(Emphasis in original)
It is evident from a fair reading of the Tribunal’s reasons as a whole and without a keen eye to error, that there were a number of reasons why the Tribunal did not accept the applicant’s claims about having been beaten in 2012. They included the fact that the Authority found it not credible that the applicant would have been beaten without first being questioned, as well as the fact that a beating of the proportions discussed would not have resulted in injuries requiring medical attention and that after such a beating the applicant would have continued to report for a further six weeks before fleeing Sri Lanka. These are all factors which it was open to the Authority to have regard to and does not suggest a misunderstanding of the applicant’s claim.
It is also submitted for the Minister that the emphasis placed on the word ‘him’ in the last line of paragraph [30], indicates that the Authority did understand that the applicant claimed to have been questioned about the hidden weapons. When the reasons of the Authority are read as a whole, I agree that that is an interpretation open to this court. I do not accept the applicant’s submission that that is a far-fetched interpretation of the Authority’s reasons.
For each of these reasons, particulars (a) and (b) of ground 2 are not made out.
Particular (c)
Further to the assertions in particular (f) of ground 1, the applicant says that the Authority’s failure to consider country information relating to torture and abuse of human rights, constitutes a failure to consider a relevant consideration.
For the reasons discussed in relation to particular (f) of ground 1, there is no proper basis on which to infer that the relevant country information was not considered by the Authority. The fact that the Authority did not expressly refer to the country information identified by the applicant is not evidence that it was not considered. The Authority is not required to specifically refer to all the evidence before it. And in this case, the Authority had concluded that the applicant:
(a)did not have and would not be perceived as having any LTTE association or links;
(b)was not of interest to the authorities.
In those circumstances, it was not necessary for the Authority to expressly refer to country information about the risk of torture to people with LTTE association (actual or imputed). I accept the Minister’s submission that to the extent that the Authority did not expressly refer to this material, it deemed it to be irrelevant.
Ground 3
By ground 3 the applicant contends that:
3.The Authority fell into jurisdictional error in that it was legally unreasonable or made findings without a logically probative basis.
Particulars
a)Further or in the alternative to Particulars (b) and (d) to Ground 1, the Authority was legally unreasonable not to find exceptional circumstances to consider the information set out in those Particulars.
b)The Authority was legally unreasonable to find inconsistencies between the Applicant’s written and oral accounts of the death of his employer, rather than finding that he had given different aspects of the situation at different times. (CB 173, [22]-[24])
c)The Authority assumed that it could not be true that the army had shot the employer and then set about investigating the shooting, but this was an obvious possibility if the army had shot him but wished to cover up its murder. (CB 173, [25])
d)The Authority was unreasonable in finding significant inconsistencies in the Applicant’s evidence of the interrogations and beatings he had undergone, when the events were traumatic, not willingly to be recalled, and some were nearly seven years before the Applicant was interviewed by the Minister’s delegate. (CB 173, [27])
e)The Authority had no logically probative basis for its findings that “If the army considered the applicant was associated with the LTTE in 2010 they would not have offered money, but would have arrested him and sent him to a rehabilitation centre or prosecuted him, as indicated by the country information.” (CB 173, [28]-[29]; and CB 174, [35]) The Authority did not refer to any specific evidence for this finding, and the DFAT report on Sri Lanka to which it obliquely referred at some other points of its reasons referred to the rehabilitation of members of the LTTE, but not to the wholesale rehabilitation of all persons “associated with the LTTE”. (DFAT Country Report – Sri Lanka, 24 January 2017, 3.34-3.55.)
f)The Authority was unreasonable to find “the applicant’s account of the beating in 2012 lacks credibility … it is not credible that he would not have needed medical treatment or hospitalisation. The army dropped him home…” (CB 174, [31]) The Authority had no logical basis to reject an account of torture and callous cruelty by the Sri Lankan army, when the material before it, including the DFAT report, supported the view of a culture of entrenched torture. (DFAT report, 4.11-4.20)
g)The Authority had no logical basis to reject the Applicant’s claim that he reported daily for six weeks, but then stopped reporting through fear, and decided to flee Sri Lanka. (CB 72, [22]-[24]; CB 174, [32])
h)The Authority was unreasonable to find that “If he were wanted by the authorities, there was plenty of opportunity to arrest him.” (CB 174, [36] But the Applicant had explained that after his questioning in 2010, the authorities had no information to prompt them to arrest him until after the cache of weapons was found on 18 June 2012. It was the next day after that, 19 June 2012, that he was again detained and questioned. (CB 72, [20]-[24]) From that time until he left in August 2012, he was reporting to the army daily, and then in hiding.
i)Further or in the alternative to particular (e) to Ground 1, it was unreasonable for the Authority to reject the corroborative letters from the Parish Priest and from the Human Rights Organisation of Justices of the Peace, without seeking new information from the authors of those letters about their knowledge of the Applicant’s situation. (CB 82, 84; CB 174-175, [37]-[38]
j)For the reasons set out in the Particulars to Grounds 1, 2 and 3, the Authority was unreasonable to reject the claims that the Applicant’s employer had been in or connected with the LTTE, and killed, and that the Applicant had been interrogated and beaten in 2010 and 2012, had reported daily for six weeks to the army, and that the authorities of Sri Lanka are interested in the Applicant and members of his family. (CB 175, [41])
k)The Authority had no evidence for its categorical finding that “While there are reports of arrests and torture they were known as former LTTE members.” (CB 179, [74]) The evidence cited by the delegate referred to proportions of people tortured as connected with the LTTE, or “nearly all cases” or “a majority of cases” with an accusation or suspicion of such connection. (CB 118-121)
l)Further or in the alternative to Particular (f) to Ground 1, the Authority was legally unreasonable not to find that the Applicant had a real chance of suffering relevant harm in the reasonably foreseeable future.
By ground 3 the applicant asserts that various findings and/or reasoning by the Authority was legally unreasonable, was irrational, or lacked a logical and probative basis. It is well settled that:
The characterisation of a decision (or state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made.[28]
[28] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (‘Djokovic’) at [33].
Further, as the Full Court of the Federal Court stated in Djokovic, at [34]:
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”. … It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in the reasoning may only explain why a mistake of fact has been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
In considering this ground, it is important to have regard to the statutory task that the Authority was engaged in. In determining whether to grant a visa under section 65 of the Act, the Authority had to be satisfied (or not if it was to refuse the visa) of a number of matters, including whether the applicant satisfied the refugee criteria or the complementary protection criteria. The issue before this court on judicial review therefore is whether the Authority’s state of satisfaction of those matters is attended by illogicality or irrationality or whether any findings made or inferences drawn lacked a probative and logical basis.[29]
[29] EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681.
Importantly, illogicality or irrationality in reasoning which will constitute jurisdictional error, must be more than an emphatic disagreement with the reasoning or findings. As noted by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, at [131]:
… the test for illogicality or irrationality must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Similarly, for a decision to be affected by jurisdictional error on the basis of illogicality or irrationality, ‘extreme’ illogicality or irrationality must be demonstrated, again on the basis that it is not enough for the factual issue to be one in respect of which reasonable minds might differ and must be assessed against the statutory inquiry being undertaken.[30]
[30] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
Having set out the principles which I am bound to apply, I will now turn to consider the particular grounds alleged by ground 3.
By particular (a) to ground 3, the applicant asserts that the Authority acted unreasonably in not finding exceptional circumstances warranting the consideration of the information set out at particulars (b) and (d) of ground 1. The applicant relies on the same arguments raised in relation to particulars (b) and (d) of ground 1.
For the same reasons given in relation to those particulars of ground 1 above, I am not satisfied that the Authority’s reasons are unreasonable in the sense required to find jurisdictional error.
By particulars (b) to (f) of ground 3, the applicant takes issue with various factual findings made by the Authority and say that those findings were unreasonable or lacked a probative basis.
I will address them in turn, but note that in large part, these particulars do little more than take issue with the findings made by the Authority and rise no higher than seeking impermissible merits review.
By particulars (b) and (d), the applicant asserts that it was legally unreasonable for the Authority to find inconsistencies in the applicant’s evidence both about the death of his employer and about the beatings he claims to have received. It is submitted that in relation to the applicant’s evidence about the death of his employer, that the Authority should have found that, rather than provide inconsistent evidence, the applicant had simply given different aspects of the same situation at different times. Similarly, in relation to the beatings, it was submitted that the Authority should have had regard to the traumatic nature of the incidents in determining the quality of the applicant’s evidence, and in particular, whether there were inconsistencies in his evidence or whether it was simply affected by the trauma he suffered and the delay in time from when the incidents had occurred.
The applicant submits that in adopting the approach it did, the Authority’s reasoning was affected by legal unreasonableness.
For the reasons discussed above, and having regard to the Authority’s reasons as a whole, it was open to the Authority to make the findings that it did in relation to the applicant’s evidence about the death of his employer and about the beatings he allegedly suffered. The Authority’s analysis at paragraphs [22] to [27] was entirely open on the material before it.
To the extent that the applicant submits that the Authority may have reasoned in a different way, this is not a proper basis for a finding of legal unreasonableness. It simply seeks impermissible merits review.
Similarly, by particular (c), the applicant claims that the Authority’s reasoning at paragraph [25] was unreasonable and that it was entirely possible that the army had killed the applicant’s employer and then, as part of a cover up, purported to undertake an investigation. Again, by this aspect of ground 3 the applicant seeks little more than impermissible merits review. The courts have consistently maintained that in determining whether an administrative decision is affected by legal unreasonableness, more than strong disagreement with the decision is required.
By particular (e), the applicant asserts that the Authority’s conclusion that if the applicant had been considered to be associated with the LTTE in 2010, he would have been sent to rehabilitation or prosecuted, was not supported by the country information before it and therefore lacked a logical or probative basis.
It is common ground that the Authority did not expressly refer to country information in support of this particular finding at paragraph [28]. However, I accept that, as noted by the Minister, there was country information upon which such a finding could have been made before the Authority. Relevantly, the delegate’s decision referred to the ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’.[31] That document contained the following statement which provided a rational and probative basis for the Authority’s conclusions:
Since the end of the armed conflict in April 2009, former LTTE combatants and LTTE members and many others suspected of having links with the LTTE have been demobilized and have gone through a ‘rehabilitation’ programme. … A total of over 11,000 individuals with alleged links to the LTTE – mostly former combatants, but also drivers, cooks and other aides – have undergone this process. …[32]
[31] Court book at pages 114 and 115.
[32] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’, 21 December 2012 at page 11.
The Authority’s reasons are to be read as a whole and without a keen eye to error. The mere fact that the Authority did not expressly footnote the relevant country information it relied upon in its reasons, when there was country information before it that could provide a rational and probative basis for the Authority’s findings, does not evidence error.
By particular (f), the applicant claims that the Authority’s finding that the applicant’s description of the beating in 2012 lacked credibility was unreasonable. It is said that it was unreasonable for the Authority to find that this was so on the basis that it did, namely that had such a beating occurred, the applicant would have required medical treatment and/or that the applicant would not have been dropped at home by the army.
The applicant submits that there was no logical or probative basis upon which the Authority could have rejected an account of torture and cruelty by the Sri Lankan Army in circumstances where the Authority had before it evidence of a culture of torture within Sri Lanka.
Again, this aspect of ground 3 invites the court to reach a different factual conclusion on the evidence and thereby invites the court to engage in impermissible merits review. When read as a whole and fairly, the Authority did not conclude that the Sri Lankan Army would not have tortured anyone, rather it concluded that the scenario put forward by the applicant about the alleged torture which occurred in 2012, was not credible. The reasons given for reaching this conclusion were open on the evidence before the Authority. The applicant’s evidence was that the torture was vicious and lasted for many hours from early morning into the evening. It was open to the Authority to doubt that such a vicious beating would not have resulted in the applicant requiring some medical attention or possibly hospitalisation. There is no error in the Authority’s reasoning in this regard.
Similarly, by particular (g) of ground 3, the applicant asserts that there was no logical or probative basis to reject the applicant’s claim that after this beating, he reported to the Army for six weeks and then stopped and fled Sri Lanka. Again, it was open to the Authority to doubt the applicant’s evidence in this regard. The Authority’s findings were responsive to the applicant’s brief evidence about this. Ultimately, the Authority is tasked with assessing the veracity and credibility of the applicant’s claims. The conclusions reached by the Authority, having regard to the claims made, were open to the Authority in this regard.
The applicant further takes issue with the Authority’s findings at paragraph [36] that if the Sri Lankan authorities were after him from 2010, they had plenty of opportunities to arrest him. Relevantly, he says that his claim was that it was only after the authorities found the cache of weapons on 18 June 2012 that they came after him. Moreover, the applicant’s claim was that the day after they found that cache of weapons, he was taken, beaten and then required to report daily until he left Sri Lanka.
The findings by the Authority at paragraph [36] must be read together with the Authority’s findings and analysis earlier in its reasons. Relevantly, at paragraph [36], the Authority found that:
Further, the applicant lived and worked in the same area during and after the war until his departure in August 2012. If he were wanted by authorities, there was plenty of opportunity to arrest him. I do not accept he was in hiding. His application lists his address and work history and it is very clear that he continued to live and work in the same place until his departure in August 2012.
When read as a whole, it is clear that the Authority considered but rejected the applicant’s claim that he went into hiding after he allegedly stopped reporting daily to the army. Indeed, the Authority did not accept that the applicant was arrested or beaten in June 2012 and found that the applicant remained living at the same home address throughout this period until he left Sri Lanka in August 2012. Moreover, the findings at paragraph [36], must be read against the earlier findings of the Authority, including that if the applicant was suspected of LTTE links he would have been arrested and sent to a rehabilitation centre,[33] as well as that the applicant was not of any interest to the Authorities at all from 2010.[34] The fact that the applicant had applied for a passport through official channels in 2010 was further evidence that the Authority relied upon in reaching this conclusion.
[33] Authority decision record dated 14 December 2017 at paragraph [35].
[34] Authority decision record dated 14 December 2017 at paragraph [34].
When viewed in context, it is apparent that the Authority considered the applicant’s claims, but rejected them. That rejection was open to the Authority and does not disclose any jurisdictional error. The applicant’s claims in relation to this aspect of ground 3 does little more than invite the Court to come to a different conclusion on the evidence. This is impermissible merits review.
Particular (j) of ground 3 takes issue with the Authority’s rejection of the applicant’s central claim about his employer’s links to the LTTE, his employer’s death and the consequential interrogation of the applicant about these matters, and the alleged cache of weapons found by the army in 2012. For the reasons discussed earlier, including in relation to grounds 1 and 2, these findings were reasonably open to the Authority and no error is disclosed.
By particular (k) of ground 3, the applicant takes issue with the Authority’s finding at paragraph [74]. It is asserted that the Authority’s finding in the opening sentence of that paragraph was not supported by the evidence before the Authority. Relevantly, the applicant says that the evidence cited by the delegate left open the possibility that some people without LTTE connections (actual or perceived) were also tortured.
The Minister concedes that the language used in the opening sentence of paragraph [74] is not accurate in so far as it suggests that only people with actual LTTE connections are exposed to risks of arrest and torture. However, it is submitted that this does not result in the Authority’s reasoning being legally unreasonable. I agree.
The Authority did not accept the applicant was an LTTE member or was perceived to have been associated with the LTTE. For reasons discussed in relation to particular (c) of ground 2, having reached this conclusion, the country information which related to risks of torture were not relevant to the consideration of the applicant’s situation.
It is also relevant that paragraph [74] appears in the context of consideration by the Authority of risks faced by the applicant if he were to return, having departed illegally from Sri Lanka. When read in the context of the whole of paragraphs [74] and [75] and the Authority’s earlier reasons regarding the risks faced by the applicant, the conclusions reached about the risk to the applicant if he were to return to Sri Lanka were not unreasonable. This is notwithstanding an oversimplification of the country information in relation to the risks of torture by the Authority. However, the reasons at paragraph [74] must be read in the context of the whole of the Authority’s reasons. No error is disclosed.
For each of these reasons, ground 3 is not made out.
CONCLUSION
As none of the grounds of review is made out, the applicant’s application must be dismissed.
The Minister seeks an order that the applicant pay their costs of the proceeding. In circumstances where the applicant has been unsuccessful, it is appropriate for such an order to be made.
For these reasons, I make the orders set out at the commencement of these written reasons.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 6 June 2024
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