FTZ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 261
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FTZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 261
File number(s): MLG 2875 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 22 March 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Have Enterprise Visa (subclass 790) – consideration of whether Authority failed to consider applicant’s claim, submissions or evidence – whether conclusions reached by the Authority were reasonably open – whether Authority erred in not seeking further information from applicant’s brother – consideration of whether Authority’s findings were unreasonable – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5J, 36, 65, 473DC, 473DD, pt 7AA Cases cited: ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [148] 1 KB 233
BXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 289
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Chan v Minister for Immigration, and Ethnic Affairs (1989) 169 CLR 379
EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796
EHF17 v Minister for Immigration (2019) 272 FCR 409
EVA17 v Minister for Immigrationand Border Protection (2018) 262 FCR 304
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of last submission/s: 25 January 2024 Date of hearing: 25 January 2024 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Ms K Chan Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 2875 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FTZ17
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:
22 MARCH 2024
THE COURT ORDERS THAT:
1.The applicant’s amended application filed on 17 January 2024 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 8 December 2017 affirming a decision of a delegate for the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Safe Have Enterprise Visa (subclass 790) (‘SHEV’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is a Sri Lankan citizen who arrived by boat in Australia on 3 November 2012.[1]
[1] Court book at pages 12 and 196.
Application for a SHEV on 10 May 2016
The applicant applied for a SHEV on 10 May 2016.[2]
[2] Court book at page 49.
The applicant attended an interview with an officer from the Department of Immigration and Border Protection on 11 October 2016 (‘SHEV interview’).[3] He attended together with his representative, and following that interview, further written submissions were filed by the applicant’s representative on his behalf.[4]
[3] Court book at page 132.
[4] Court book at page 135 and following.
On 2 February 2017, the applicant was provided with the opportunity to comment on information before the delegate which could be adverse to his application.[5] Relevantly, the delegate noted that there was an inconsistency between information provided by the applicant in support of his application for a SHEV with that provided by his brother in his brother’s Transfer Interview. The inconsistency related to when the applicant said that he last saw his brother. In his material, the applicant said that he last saw his brother in 2009, whereas the applicant’s brother had provided information which suggested that he had resided at the same address as the applicant until 2014.
[5] Court book at page 163 and following.
The applicant’s representative provided a statutory declaration from the applicant’s brother addressing this inconsistency.[6] Relevantly, the applicant’s brother said that the information he provided at his Transfer Interview was incorrect and the applicant’s brother provided an explanation regarding the circumstances in which that information was provided. The applicant’s brother confirmed that the applicant had, in fact, been correct in the information he provided in his application.
[6] Court book at pages 168 to 169; pages 190 to 191.
On 27 March 2017, the delegate refused the applicant’s application for a SHEV.[7]
[7] Court book at page 193 and following.
Referral to the Authority on 6 April 2017
On 6 April 2017, the delegate’s refusal decision was referred to the Authority pursuant to Part 7AA of the Act.[8]
[8] Court book at page 215.
On 25 April 2017, the applicant’s representative provided written submissions to the Authority in which, among other things, the applicant repeated earlier claims that:
The Colombo CID, often referred to as the ‘4th Floor Colombo’ by Tamils, was notorious for carrying out torture against Tamils whilst in custody.[9]
[9] Court book at page 233.
On 8 December 2017, the Authority affirmed the delegate’s decision and refused to grant the applicant a SHEV.[10]
[10] Court book at page 238.
The Authority’s decision of 8 December 2017 is set out at pages 241 to 254 of the court book.
PROCEEDINGS IN THIS COURT
The applicant filed his application for judicial review in this court on 28 December 2017.
On 17 January 2024, the applicant filed an amended application, by which he seeks orders:
(a)quashing the Authority’s decision;
(b)directing the Authority to determine the applicant’s application according to law;
(c)injuncting the first respondent from relying upon the Authority’s decision; and
(d)requiring the first respondent to pay the applicant’s costs of and incidental to the application.
The applicant also seeks a declaration that the Authority’s decision was not made in accordance with law.
By this amended application, the applicant also raises three grounds of review, which are set out in more detail below.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant claims that:
1.The Second Respondent (‘the Authority’) fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
Particulars
(a)The Authority did not consider the evidence (CB 190) and submissions (CB 185, 233-234) that the investigations or case concerning the Applicant’s brother involved the 4th floor of CID in Colombo, ‘notorious for carrying out torture against Tamils whilst in custody’. (CB 185, 233)
(b)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.
By ground 1, the applicant asserts that the Authority failed to consider a claim, submissions or evidence advanced on his behalf.
Particular (a)
By particular (a), it is asserted by the applicant that the Authority did not consider that the investigations of the applicant’s brother, on his return to Sri Lanka, involved the 4th floor of the CID in Colombo which was ‘notorious for carrying out torture against Tamils whilst in custody’.
The Minister does not take issue with the principles upon which the applicant relies in relation to ground 1, namely, that the decision-maker is required to consider claims and material put forward in support of those claims and that a failure to do so could amount to a jurisdictional error.[11] Rather, it is submitted for the Minister that there is no basis for inferring that the Authority failed to do so in this instance.[12]
[11] Court transcript at page 31.
[12] Minister’s Outline of Submissions filed on 17 January 2024 at paragraph [13].
It is not in dispute that the applicant made reference in his submissions to the fact that the Colombo CID is often referred to as the ‘4th Floor Colombo’ by Tamils and that it was notorious for carrying out torture against Tamils whilst in custody.
By way of background, it is also not in dispute that the applicant’s brother had also left Sri Lanka and sought to come to Australia. He was sent to Nauru. As stated, in his Transfer Interview conducted on 7 September 2014, the applicant’s brother provided an address at which he resided from 2011 to about 6 January 2014 which was the same address as the applicant’s home address (other than for a period in 2010 when he was hospitalised).[13] This was inconsistent with the applicant’s claim during his SHEV interview that he last saw his brother in 2009, when his brother was detained by the Sri Lankan authorities.[14]
[13] Court book at pages 200 to 201.
[14] Court book at page 163.
When this inconsistency was put to the applicant, as stated, the applicant filed and relied upon a statutory declaration by his brother addressing this inconsistency.[15]
[15] Court book at page 184.
Also his statutory declaration, the applicant’s brother gave evidence about the treatment that he received on his return to Sri Lanka:
The moment I arrived at the airport, I was arrested and imprisoned and subsequently produced at the Negombo Magistrate’s court. Then I was summoned to Colombo CID division (fourth floor). A case was filed against me.[16]
[16] Court book at page 190.
In the submissions filed by the applicant’s representative on 25 April 2017 (‘April 2017 submissions’), the applicant’s representative referred to the findings made by the delegate at pages 11 to 12 of the delegate’s decision regarding the risk to a returned asylum seeker, and in particular, the finding that:
While I accept that the applicant may be detained upon arrival in Sri Lanka, this does not necessarily mean that he will suffer serious harm in detention …[17]
[17] Court book at pages 207 and 232.
In the April 2017 submissions, the applicant’s representative went on to say:
Such a finding is highly refutable given that the delegate had before him probative evidence of the harm (the applicant’s brother) had faced yet it was completely ignored.[18]
[18] Court book at page 232.
Moreover, the applicant’s representative went on to note that the applicant’s brother was willing to provide further evidence about the harm he faced in detention.[19] The applicant’s representative then noted the documentary evidence which had been submitted that provided for the applicant’s brother to report to CID Colombo and stated that he had not so reported, fearing serious harm. It was in this context that the applicant’s representative went on to say:
[19] Court book at page 233.
The Colombo CID, often referred to as the ‘4th Floor Colombo’ by Tamils, was notorious for carrying out torture against Tamils whilst in custody.
The delegate took none of this probative evidence into account before refusing my client.
This was highly prejudicial to my client.
…
It is open to you to find, to the contrary, that my client will face harm if deported to Sri Lanka.
The ongoing adverse interest in his brother … supports such a finding.
…
It is open to you to find that (the applicant’s brother) despite voluntarily returning to Sri Lanka, faced arrest, a travel ban and ongoing investigations by CID. Even if this was purely for his illegal departure and not an adverse past for association with the LTTE, it would still contradict the information relied upon by the delegate including from DFAT reports, that Tamil returnees at the lowest, receive a fine for illegal departure.
(The applicant’s brother) was physically harmed in detention following his arrest – the extent of this cannot be known given that no interview was held, despite [him] being willing to provide testimony about this, in support of his brother.
The ongoing investigations by CID and order for (the applicant’s brother) to appear at the 4th Floor cannot be ignored.[20]
[20] Court book at pages 233 to 234.
At paragraph [4] of the Authority’s decision record, it expressly referred to the April 2017 submissions and said:
4.On 25 April 2017, the IAA received an IAA appointment of authorised recipient form and a five page statutory declaration from the applicant’s representative … The submissions in part reassert claims made to the delegate that are already before me and make arguments about those issues and why the delegate’s decision is wrong and I have had regard to them. … (emphasis added)
At paragraph [25] of the Authority’s decision record, the Authority referred expressly to the applicant’s claims about the treatment that his brother received on his return to Sri Lanka. Relevantly, the Authority accepted that the applicant’s brother agreed to return voluntarily to Sri Lanka due to medical issues he was suffering. The Authority went on to say:
25.… (The applicant’s brother) states that the moment he arrived at the airport in Sri Lanka he was arrested and imprisoned and subsequently produced at the Negombo Magistrate’s Court. He was then summoned to the Colombo CID and a case was filed against him. He states that an investigation is ongoing and he is hiding and living in fear.
The applicant refers to and relies upon the following passages from Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1’), where the High Court said:
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, 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.
25.It 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 decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26.Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
Plaintiff M1 related to the non-revocation of the cancellation of a visa. It is in this context that it refers to the need to consider representations made by the applicant seeking a revocation of the cancellation under section 501CA of the Act.
The applicant accepts that in a case such as this, where the Authority is assessing a claim for a protection visa, the Authority must consider each claim and integer of a claim made or which clearly arises on the material before it.[21] The applicant referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at paragraph [58], where the court said:
58.The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it … There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it … The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[21] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [10].
The applicant also concedes that the Authority is not required to refer to every piece of evidence upon which its findings are made.[22] However, the applicant submits that the failure to refer to evidence can indicate that the Authority overlooked it or misunderstood it.
[22] Court transcript at page 8.
As stated, there is no dispute between the parties as to these principles. The difference between them is how they apply to the facts before the Authority.
It is submitted for the applicant that there was a claim which arose on the material before the Authority that the applicant did face a risk of harm on his return to Sri Lanka by reference to the treatment that his brother had received when he returned. That is, that his brother had been arrested, assaulted and threatened in detention.[23] Importantly, it is submitted for the applicant that the claim to fear harm was further based on the fact that the applicant’s brother was summoned to present himself to the 4th floor of the Colombo CID, and that there was material before the Authority that the 4th floor of the Colombo CID was notoriously a place where Tamils had been tortured by the CID.[24]
[23] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [12].
[24] Court transcript at pages 8 to 9.
It is submitted for the applicant that the Authority did not engage with this aspect of the claim and that this failure amounts to a jurisdictional error.
I accept that there is nothing in the Authority’s reasons which expressly refer to the submission made by the applicant that the applicant’s brother’s case required him to report to the 4th floor of the CID in Colombo or that this referenced a part of the CID which was ‘notorious for carrying out torture against Tamils’. However, this does not lead to the conclusion that the Authority did not consider this and other claims made in the applicant’s submissions. Indeed, to the contrary, the Authority expressly said that it did consider that submission at paragraph [4] of its reasons, as outlined above.
As noted in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at paragraphs [47] to [48], where the court had to consider whether the Minister had considered the arguments advanced before him, in determining whether to cancel a visa, the court said:
47.Thus the central focus … here is on the question whether the Minister engaged in an active intellectual process in considering the merits of the two cases before him. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. We will discuss some of those statutory indicators shortly.
48.Before we do, however, it is appropriate to state two matters. First, a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof. Secondly, some broad guidance may be obtained from other authorities as to the kinds of circumstances in which such a finding could be made. In referring to these authorities, we do not suggest that the requisite evaluative judgment is to be conducted as though it involves a “tick the box” comparative exercise by reference to other decided cases. As we have emphasised, each case will necessarily turn on its own particular facts and circumstances. (emphasis added)
These principles were adopted in the context of a protection visa application in ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426 at paragraphs [34] to [35], where Justice Katzmann said:
34.The Authority was required to engage, in an active and intellectual sense, with the merits of the appellant’s claims. To fail to do so may amount to a constructive failure to exercise jurisdiction …
35.But a finding that a decision maker has not considered a claim is not to be made lightly: Carrascalao v Minister for Immigration and Border Protection … Moreover, a decision maker’s reasons should not be construed ‘minutely and finely with an eye keenly attuned to the perception of error’: Minister for Immigration and Ethnic Affairs v Wu Shan Liang … And the Authority’s reasons should be read as a whole: BXK15 v Minister for Immigration and Border Protection …
A court therefore ought not be too ready to draw an inference that the decision-maker has overlooked material where the reasons are otherwise comprehensive and where the decision-maker has identified the issue at some point. Moreover, it is well accepted that it is not necessary for a decision-maker to:
46.… refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. … The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.[25]
[25] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (‘WAEE’) at [46] per French, Sackville and Hely JJ; See, also, EVA17 v Minister for Immigrationand Border Protection (2018) 262 FCR 304 at [36].
In this case, as stated, the Authority did not expressly refer to the submissions made by the applicant’s representative about the fact that the applicant’s brother had been directed to attend the Colombo CID which it is said is often referred to as the ‘4th Floor Colombo’ and which is renowned for carrying out torture of Tamils in custody. However, it expressly made reference to the submission in which this claim was made at paragraph [4] of its reasons and said that it had considered that submission.
In addition, at paragraph [25] of the decision record, outlined above, the Authority records the applicant’s claim, and that of his brother, that on his return to Sri Lanka, the applicant’s brother was arrested and imprisoned, presented to the Negombo Magistrate’s Court before being released and, importantly, that he was summoned to appear at the Colombo CID. This is further evidence that the Authority considered the applicant’s claims to fear harm by reference to his brother’s experience on return to Sri Lanka.
The Authority then went on to consider country information about treatment meted out to returnees to Sri Lanka after an illegal departure. At paragraph [26], the Authority goes on to accept that the applicant’s brother was arrested and charged on his return to Sri Lanka under the I&E Act but concluded that this was not because he had a significant LTTE profile, but rather, because he had left Sri Lanka illegally. The Authority also rejected the applicant’s claim that his brother had been detained in the Negombo prison during which time he was physically harmed and his life threatened. These findings were reasonably open on the material before the Authority.
When the Authority’s reasons are read in their entirety and fairly, in the sense contemplated in Wu Shan Liang,[26] the fact that the Authority did not expressly refer to the submissions made about the ‘4th floor Colombo CID’ does not establish that it did not consider the applicant’s submissions in this regard.
[26] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’).
I therefore find that ground 1(a) is not made out.
Particular (b)
By ground 1(b), it is submitted that the Authority did not consider all the material before it regarding the prevalence and culture of torture and abuse in Sri Lanka, including of persons with links to the LTTE.
I accept that the applicant raised concerns about the abuse of human rights in Sri Lanka.
The applicant also claims that the issue of the abuse of human rights also arose from the country information before the Authority, in which reference was made to allegations of torture perpetrated by the Sri Lankan military and intelligence forces.[27] It was submitted for the applicant that this material suggested that even after the end of the war, a culture of torture remained, especially directed to people in detention.[28]
[27] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [13].
[28] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [15].
The applicant says that the Authority did not consider this material in the context of determining the risk faced by the applicant if he were to return to Sri Lanka. This is particularly so in circumstances where the Authority concluded that the applicant was likely to be detained and questioned as a person who had departed Sri Lanka illegally.[29] This, it is said for the applicant, amounts to a jurisdictional error. Moreover, it is submitted that such an error is material in that had the Authority considered these matters, it could have led to a different conclusion on the Authority’s assessment of the risk of harm.[30]
[29] See Authority decision record dated 8 December 2017 at paragraph [38].
[30] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [16].
Again, when one considers the Authority’s reasons as a whole and read fairly, I do not accept that the Authority did not consider the material referred to by the applicant at paragraph [14] of the applicant’s written submissions, or indeed, any other material referred to by the applicant. As stated, the Authority does not need to refer to every piece of evidence before it or make reference to every submission. However, it is apparent from a fair reading of the Authority’s reasoning that it understood the applicant to have claimed that he would face harm on his return, including that he feared harm due to having departed Sri Lanka illegally.
I also note that the relevant extracts from the DFAT report to which the applicant refers in support of ground 1(b) also distinguishes between the situation during the conflict in Sri Lanka, immediately thereafter and subsequently.[31] For example, whilst paragraph [4.12] refers to reports of torture perpetrated by Sri Lankan military and intelligence forces, it notes that this ‘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)’.[32]
[31] See Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [14].
[32] Supplementary Court Book at page 32 and following.
Similarly, at paragraph [4.15], there is reference to reported instances of torture by the police, ‘in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security’.
At paragraph [4.18], the DFAT report notes that:
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.
In relation to returnees of asylum seekers, at paragraphs [4.21] to [4.22], the DFAT report notes that claims of torture have been made by asylum seekers who have been returned to Sri Lanka, but they cannot be verified.
Moreover, the report notes that whilst DFAT does not routinely monitor the situation of returnees, it assessed 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’. The assessment made by DFAT in this regard is an assessment to which the Authority was entitled to have regard, notwithstanding that DFAT noted that it did not ‘routinely monitor’ returnees.
These comments are consistent with the findings made by the Authority at paragraphs [25] to [26] of its decision record, where the Authority set out its analysis of the country information it considered relevant to the issues before it. The assessment and weight to be given to country information is a matter for the Authority.[33] It is evident from a fair reading of paragraphs [25] to [26] that the Authority was summarising its assessment based on the country information before it.
[33] EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 at [53].
An inference cannot and, in my view, should not be drawn on the basis of the Authority’s reasons, that it did not have regard to the country information now identified by the applicant. The weight to be given to that information was ultimately a matter for the Authority. The conclusions reached by the Authority were reasonably open to it on the totality of the information before it.
For each of these reasons, ground 1(b) is not made out.
Ground 2
In relation to ground 2, the applicant alleges that:
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 of the Migration Act 1958 (Cth) (‘the Act’), in not seeking new information at interview or otherwise, in order to get new information about the Applicant’s brother’s situation on return to Sri Lanka, including the brother having been detained and charged and having a case against him, and having been summoned to the CID in Colombo (4th floor).
(b)The Authority erred in interpreting or applying the terms ‘well-founded fear of persecution’ in section 5H(1)(a) of the Act, ‘real chance’ in section 5J(1)(b) of the Act, and ‘real risk’ of significant harm within the meaning of section 36(2)(aa), shown by its finding that:
“I have considered the applicant’s involvement with the LTTE and his friendship with S and N but I am not satisfied that this has given him a profile that would lead to a real chance of him being targeted by any Sri Lankan authority …”
(Emphasis added. Decision and reasons [28])
(c)The Authority’s conclusions that the Applicant was not a person owed protection under sections 36(2)(a) and 36(2)(aa) show that it erred in interpreting or applying the terms ‘well-founded fear of persecution’ in section 5H(1)(a) of the Act, ‘real chance’ in section 5J(1)(b) of the Act, and ‘real risk’ of significant harm within the meaning of section 36(2)(aa) despite:
(i) the evidence of incidents of torture in Sri Lanka;
(ii) the evidence of entrenched culture of torture in Sri Lanka;
(iii)the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka;
(iv)the findings of the Authority which accepted much of the Applicant’s history of himself, including his and his brother’s work for the LTTE, and his brother’s detentions;
(v)the claim in evidence and submissions that the investigation or case against the Applicant’s brother involved the 4th Floor of CID in Colombo. (CB 185, 190, 233-244)
(vi)the investigation and detention of the Applicant which the Authority found would occur were he to return to Sri Lanka.
Particular (a)
By particular 2(a), the applicant asserts that the Authority erred in not seeking further information from the applicant’s brother about the treatment he had received on his return to Sri Lanka after seeking asylum.
The applicant submitted that in circumstances where the applicant’s brother had indicated that he was happy to provide further information and provided his contact details to the Authority, the Authority’s failure to do so was legally unreasonable and that this amounts to a jurisdictional error.[34] The applicant submits that this was particularly so in circumstances where the Authority had otherwise accepted much of the applicant’s testimony.
[34] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [19].
It is common ground that the Authority’s discretion to get and consider new information under sections 473DC and 473DD must be exercised within the bounds of legal reasonableness. It is also well-settled that ‘reasonableness’ is assessed by reference to the statutory context in which the discretionary power arises.[35]
[35] Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [67] (‘Li’).
It is submitted for the applicant that the statutory context consists of both procedural and substantive obligations imposed on the Authority.[36] Whilst the applicant concedes that the review process in Part 7AA is a somewhat contained one, the Authority must nonetheless consider the application before it within the context of sections 36(2)(a) and 36(2)(aa). The applicant concedes that there are many cases in which the Authority is not required to seek or consider new information. However, there are also cases where the opposite has been held to be the case.[37]
[36] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [26].
[37] Court transcript at page 17.
The applicant refers to and relies upon the decision in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (‘CRY16’) as one such decision. In CRY16, the Authority affirmed the delegate’s decision refusing to grant the applicant a protection visa, albeit for a different reason. In particular, the delegate did not find the applicant to be a credible witness and did not accept that he would face a real chance of persecution if he were to return to his home country.
On review before the Authority, the Authority found that the applicant did face a real chance of harm, but not everywhere within his home country. The Authority went on to consider whether the applicant could safely relocate elsewhere within his home country and found that he could. It was on this basis that the Authority affirmed the delegate’s decision.
On judicial review, the judge at first instance found that the Authority’s failure to provide an opportunity to the applicant to comment on his possible relocation within his home country was unreasonable and therefore amounted to a jurisdictional error. This finding was upheld on appeal by the Full Court of the Federal Court of Australia.
The court at first instance noted that the Authority was not bound by the rules of natural justice other than as provided for in Part 7AA of the Act. However, in the circumstances of that case, where the applicant was not on notice that the issue of relocation was going to be considered by the Authority, it was legally unreasonable for the Authority not to provide the applicant with an opportunity to respond to the possible relocation that it was considering.
On appeal to the Full Court of the Federal Court, the Minister argued that the court at first instance had erred. The Full Court relevantly said:
75.The primary judge found, at [21], that the Authority had not considered whether or not to exercise its powers under ss 473DC and 473DD. … We also understand the Minister to have accepted that finding. In any event, we agree with that conclusion. …
76.The Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate. The Authority must also have been taken to have known that the question of relocation depended on the particular circumstances of the respondent. As found by the primary judge, there was nothing in the interview with the delegate that concerned the question of relocation. The transcript of that interview is before the Court and we agree with that finding.
77.The analysis of legal unreasonableness in respect of statutory powers and discretions must be founded in the terms in which both powers and discretions are conferred.
78.We have identified the powers available to the Authority. It is also necessary to consider the broader statutory context.
79.It is necessary to give full weight to the requirements of s 473DB which, subject to Pt 7AA, require the Authority to review a fast track reviewable decision referred to it under s 473CA by considering the review material, as defined in s 473CB, without accepting or requesting new information and without interviewing the referred applicant. However it is clear that s 473DB is “[s]ubject to this Part” and the Part includes s 473DC.
…
82.Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
83.As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.
The reasoning in CRY16 does not, with respect, assist the applicant in this case. I accept that like in CRY16, the Authority in this case took a different approach to that taken by the delegate. However, to the extent that it did so, it took a more beneficial approach to the applicant’s claims than the delegate. It accepted most of the applicant’s claims regarding the applicant identifying as a Tamil before identifying as a Muslim,[38] that the applicant and his family provided supplies to the LTTE,[39] and that the applicant became an LTTE sympathiser and was willing to help the LTTE between 2007 and 2009.[40] The Authority also accepted that the applicant befriended two individuals, ‘N’ and ‘S’, who were part of the LTTE and that N and S showed the applicant where weapons and ammunition were stored.[41]
[38] Authority decision record dated 8 December 2017 at paragraph [10].
[39] Authority decision record dated 8 December 2017 at paragraph [11].
[40] Authority decision record dated 8 December 2017 at paragraph [12].
[41] Authority decision record dated 8 December 2017 at paragraph [13].
The Authority also accepted that the applicant’s brother was detained by the Sri Lankan authorities in 2007 and interrogated and possibly mistreated before being released.[42] The Authority also accepted that the applicant and his brother were caught up in a raid in January 2009 and that the Sri Lankan authorities attended his home and questioned his family about this incident, later returning and taking his brother away for interrogation.[43]
[42] Authority decision record dated 8 December 2017 at paragraph [14].
[43] Authority decision record dated 8 December 2017 at paragraph [17].
The Authority then found that after 2009, the applicant no longer provided supplies to the LTTE but did accept that the applicant continued to be harassed by the Sri Lankan army and security forces near the end of the war, including possibly being questioned.[44] However, it did not accept that the applicant had such a profile that he would have been personally targeted by the CID and it did not accept that the applicant ‘was personally targeted by the CID … (or) that they came to their house twice to specifically interrogate and threaten[ed] him’.[45]
[44] Authority decision record dated 8 December 2017 at paragraph [18].
[45] Authority decision record dated 8 December 2017 at paragraph [18].
The Authority also accepted that the applicant was beaten whilst standing at a bus stop in 2010, although it found this was unrelated to the other issues discussed earlier.[46]
[46] Authority decision record dated 8 December 2017 at paragraph [19].
These findings are to be contrasted with the delegate’s decision in which the delegate accepted that the applicant was a Tamil speaking Muslim,[47] and that he did some work for the LTTE through his father’s hardware business, including dealings with the LTTE and delivering goods to LTTE personnel.[48] The delegate, however, did not accept that the applicant’s brother had a pro-LTTE/anti-government profile as claimed by the applicant.[49]
[47] Court book at page 199.
[48] Court book at page 200.
[49] Court book at page 201.
Nor did the delegate accept that as a Muslim, the applicant identified as part of the wider Tamil community, that he sympathised with the LTTE or that he had befriended two members of the LTTE as claimed.[50] Nor did the delegate accept that the applicant was interrogated by the CID in 2012 about the location of weapons and ammunition.[51]
[50] Court book at page 205.
[51] Court book at page 205.
Whilst the Authority and the delegate came to different conclusions on some of the applicant’s factual claims, unlike CRY16, this is not a case where the Authority refused the applicant’s visa application on the basis of a ground not considered or brought to the applicant’s attention. This is a case where, as stated, to the extent that the Authority came to a different view than the delegate, it was in the applicant’s favour.
This is also not a case where the applicant was not given an opportunity to comment on a dispositive issue in the Authority’s consideration. The applicant was aware that one of the issues that the Authority was considering was the risk of harm that he would face if he were to return to Sri Lanka. He provided some information which he believed was relevant to that issue, namely, the treatment that he says his brother had suffered on his return. Submissions were made about this and the Authority had regard to them. If there was more information that the applicant wanted to put before the Authority on this issue, it was open to him to do so.
There was no obligation on the Authority to seek further information from the applicant’s brother. The fact that the applicant’s brother indicated a preparedness to appear by telephone before the Authority did not impose an obligation on it to take up that opportunity. Having regard to the totality of the circumstances in this matter, including the statutory context in which this decision was made, the Authority’s failure to exercise its discretion to obtain more information from the applicant’s brother was not unreasonable in the Li sense.[52]
[52] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
I also note that whilst the brother indicated that he was available if necessary to give more detail to the Authority, the applicant did not request that the Authority contact his brother, nor has the applicant stated what further information the brother might provide.
Ground 2(a) is therefore not made out.
Particular (b)
By ground 2(b), the applicant claims that the Authority erred by incorrectly applying the ‘real chance’ and ‘real risk’ test. It is submitted that the use of the word ‘would’ in paragraph [28] of the Authority’s reasons evidences that the Authority was considering whether the applicant ‘would’ rather than ‘may’ face a real chance or a real risk of harm if returned to Sri Lanka.[53] It is submitted that in doing so, the Authority required a higher degree of certainty than the Act required about what might flow from the applicant’s profile.
[53] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [20].
For the following reasons, I do not accept this submission.
Paragraph [28], and indeed the use of the word ‘would’, which the applicant focusses on in support of this submission, must be read fairly and in context. Importantly, the Authority set out the relevant legal test that it was required to apply in determining whether the applicant satisfies the refugee criterion or otherwise engages Australia’s complementary protection obligations.[54] Relevantly, section 5J of the Act provides that a person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
[54] See Applicant’s Outline of Submissions filed on 8 January 2024 at paragraphs [7] and [8].
Similarly, the Authority set out the definition of ‘significant harm’ for the purposes of complementary protection at paragraph [44] of its reasons. At paragraph [45], it went on to note the test for a ‘real risk’, for the purposes of considering whether Australia’s complementary protection obligations are engaged.
Reading the Authority’s reasons fairly, it cannot, in my view, be said that the Authority misunderstood or misapplied the ‘real chance’ or ‘real risk’ test. It considered the likelihood of the applicant being at risk of harm in the future by reference to past conduct as it found to have occurred. Read fairly, it cannot be said that the Authority was assessing whether the applicant, in fact, ‘would’ be harmed.
No error is disclosed in this regard.
Particular (c)
By particular 2(c), the applicant asserts that the conclusions reached by the Authority that the applicant did not face a ‘real chance’ or a ‘real risk’ of harm are themselves evidence that the Authority misapplied the ‘real chance’ and ‘real risk’ test.
It is accepted that a ‘real chance’ may be a small chance and that the test of a ‘real risk’ for the purposes of section 36(2)(aa) is the same as the test of ‘real chance’. Moreover, a ‘real chance’ may be found where the prospect is not ‘remote’, even if it is less than 50%.[55] It is also accepted that the applicant had made various claims about the risks he would face on return to Sri Lanka.
[55] Chan v Minister for Immigration, and Ethnic Affairs (1989) 169 CLR 379; BXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 289 at [43].
However, it was for the Authority to consider those claims, weigh the evidence and form an assessment of the risk of harm that the applicant faced. The Authority made clear that whilst the applicant had come to the attention of the Sri Lankan authorities in the period up to 2009, it was not satisfied that he had a profile which would put him at risk on his return.
Relevantly, at paragraph [29], the Authority said:
29.It is now some eight years later since the 2009 incident where the SLN raided the applicant and family’s boats and supplies and I am not satisfied that there has been any continued interest in the applicant after 2009 with the 2010 incident being an isolated incident with not targeted intent on the applicant. I have considered that his brother M was questioned during the conflict and also after he returned to Sri Lanka voluntarily, however looking at the evidence together, I am not satisfied that the applicant would be viewed adversely by the Sri Lankan authorities. I am not satisfied that he is on a ‘stop’ list at the airport. I am satisfied that the applicant does not face a real chance of harm from any Sri Lankan authority including the CID, SLN or SLA on the basis of being a young able bodied Tamil male from the Northern province who was suspected of materially supporting the LTTE or from an area formerly controlled by the LTTE, suspicion of involvement with the LTTE or that any of his family members were part of the LTTE now or in the reasonably foreseeable future.
With respect, this aspect of ground 2 amounts to a strong disagreement with the conclusion reached by the Authority and does little more than seek impermissible merits review. The conclusions reached by the Authority were reasonably open on the material before it, and they had a logical and probative basis.
Ground 2 is therefore not made out.
Ground 3
By ground 3, the applicant claims that:
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 unreasonable in finding:
“I do not accept that he had such a profile that he would have been personally targeted by the CID and I do not accept that they came to their house twice to specifically interrogate and threatened him.”
(Decision and reasons [18])
b. The Authority was unreasonable to find:
“I am not satisfied that the applicant was subjected to sexual violence at the hands of the CID on this occasion’.
(Decision and reasons [21]
c. The Authority was unreasonable to find:
“In contrast to his description of earlier events, his evidence and responses to questions after this point in his SHEV interview become more ambiguous”
(Decision and reasons [22])
d. The Authority was unreasonable to find:
“The uncertain, inconsistent, unclear and general responses that the applicant provided at his SHEV interview regarding events that occurred after 2009 leads me to form the view that they did not occur. I am willing to accept that the applicant visited S and N in 2009 however I consider this was the last contact that he had with them. I do not accept that S informed him that N had been killed, that on 9 August 2012 four CID officers came to his home and interrogated him about N, that the CID accused him of knowing where N hid weapons and told him that they had S. I do not accept that four CID officers drove him to the jungle and ordered him to show them where the weapons were hidden or that he was beaten and threatened if he did not show them where the weapons were hidden. I do not accept that he was threatened and abused while he was made to dig, or that the SLA threatened that they would come back and harm him if he did not show them or that they then left him in the jungle and he walked home. I do not accept that the applicant was subjected to sexual violence by two CID officers. I do not accept these aspects of the applicant’s claims.
(Decision and reasons [23])
e. The Authority was unreasonable to find:
For the reasons that I have given above, I do not accept that the CID or any Sri Lankan authority came looking for the applicant after the incident on 9 August 2012.
(Decision and reasons [24])
f. The Authority was unreasonable to find:
“… aside from during the conflict I am not satisfied that the applicant was singled out or targeted on this basis with the last incident where he was involved with the Sri Lankan authorities being in 2010 when he was assaulted at a bus stop. I have considered the applicant’s involvement with the LTTE and his friendship with S and N but I am not satisfied that this has given him a profile that would lead to a real chance of him being targeted by any Sri Lankan authority including the SLN, SLA or the CID now.
(Decision [28])
g. The Authority was unreasonable to find:
‘I am not satisfied on the evidence before me that being a failed Tamil asylum seeker, Tamil asylum gives rise to a real chance of harm on return. I am also not satisfied that the applicant, a Tamil asylum seeker with his history, faces a real chance of any harm on that basis.’
(Decision [40])
h. The Authority was unreasonable to find:
“I do not accept that there are any particular aspects of the applicant’s profile that would result in his being detained for a longer period or subjected to more intensive interrogation that might give rise to significant harm. I am not satisfied that there is a real risk that the applicant will be subject to the death penalty or that he will be arbitrarily deprived of his life, or suffer torture.”
(Decision [46])
i.The Authority had reports by the UN and other sources of a history and culture of torture by police and other forces, and of risks of harm to this with links to the LTTE such as working for the LTTE and having family members in the LTTE. Yet the Authority was not satisfied there was a real chance the Applicant may suffer serious or significant harm should he return to Sri Lanka.
j.Further or in the alternative to Particular (a) to Ground 2, the Authority was unreasonable in not seeking new information pursuant to section 473DC of the Act, at interview or otherwise, in order to get new information about the Applicant’s brother’s situation on return to Sri Lanka, including the brother having been detained and charged and having a case against him, and having been summoned to the CID in Colombo (4th floor).
The applicant says that the Authority acted unreasonably in the sense contemplated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [148] 1 KB 233 and in the sense discussed in Li.[56] The applicant refers to and relies upon the comments by the majority in Li (Justices Hayne, Kiefel and Bell) at paragraph [68] where their Honours said:
68.The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgement in Wednesbury. This aspect of his Lordship’s judgement may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.
[56] Applicant’s Outline of Submissions filed on 8 January 2024 at paragraph [24].
In essence, it is submitted that many of the conclusions reached by the Authority set out in the particulars (a) to (j) to ground 3 were simply not reasonably open on the evidence before it, and having regard to the evidence which the Authority did accept.
In relation to particulars (c) and (d) of ground 3, the applicant seeks to rely upon an affidavit of Ms Lim affirmed on 8 January 2024 which annexes an excerpt of the transcript of the applicant’s SHEV interview.[57] I note that the transcript is only of a part of the SHEV interview.
[57] Affidavit of Ms Netania En Hui Lim affirmed on 8 January 2024 and filed on 17 January 2024.
At paragraph [3] of her affidavit, Ms Lim says:
3.I have listened to and transcribed relevant excerpts of the recording of the SHEV interview with the Department of Immigration and Border Protection dated 31 October 2016. The parts that I have transcribed are an accurate and complete transcription of the English words spoken during those parts of the audio recording.
The applicant seeks to rely upon this transcript to take issue with the Authority’s assessment that the applicant’s evidence was ‘inconsistent, unclear and general’ as noted at paragraph [23] of the Authority’s reasons.
The applicant’s representative took the court to various responses given by the applicant during the SHEV interview and asserted that contrary to the Authority’s assessment, the applicant’s responses were definitive and unambiguous.[58] It was submitted for the applicant that whilst it is a matter for the Authority to determine whether to accept or reject some or all of the applicant’s evidence, it was not open to the Authority, acting reasonably, to do so on ‘an expressed basis which … simply did not exist on what’s in the record’.[59]
[58] Court transcript at page 22 and following.
[59] Court transcript at page 25.
I do not accept this submission for the following reasons.
First, the transcript annexed to Ms Lim’s affidavit is incomplete. Whilst I accept that as an officer of the court, she has deposed to transcribing that part of the SHEV interview, which the Authority has identified as the point at which the applicant’s evidence has changed, without the full transcript it is difficult to draw any conclusions as to whether the Authority’s view that the quality of the applicant’s evidence had changed was reasonably open. The Authority’s conclusion that there had been a change in the quality of the applicant’s evidence requires a comparison of the evidence given before and after this point. That is not possible without the full transcript.
But in any event, a similar argument to that advanced in ground 3, namely that the Authority’s various findings of fact were unreasonable, and if so, that this constitutes a jurisdictional error, was advanced and rejected in EHF17 v Minister for Immigration (2019) 272 FCR 409. In that case, Justice Derrington noted that the vice identified in that case (as it is in this case) is not so much one of ‘unreasonableness’ in the Li sense, but rather whether:
3.… the allegedly erroneous factual determination of the Tribunal was such that the required state of mind did not exist, with the consequence that the subsequent purported exercise of power was without authority and, in that sense, ultra vires.
However, Justice Derrington went on to say that ‘whether the appellant’s complaint is considered as the non-existence of a jurisdictional fact or the occurrence of a jurisdictional error in the exercise of power, it cannot succeed’.[60] Similar reasoning applies to the present matter.
[60] EHF17 v Minister for Immigration (2019) 272 FCR 409 at [4].
In this case, the issue for the Authority was whether the applicant faced a real chance or a real risk of harm if he were to return to Sri Lanka. The conclusions that the Authority reached on that question, were in my view, logical and rational and open on the material before the Authority. It is not unreasonable for a decision-maker to accept that some claims made by an applicant are true, but others are not.
Even if it could be shown that another decision-maker would have come to a different conclusion, that is not determinative. I agree with the Minister’s submission that none of the findings referred to in ground 3 were illogical or irrational, having regard to the evidence before the Authority.[61]
[61] See Minister’s Outline of Submissions filed on 17 January 2024 at paragraph [38].
I have dealt with the matters at ground 3(c) and (d) above.
In relation to ground 3(a), the relevant finding was particularly open in circumstances where there was evidence before the Authority that the situation in Sri Lanka had improved after 2012 for someone like the applicant who, whilst he had some involvement with the LTTE until 2009, did not, in the Authority’s view, have a profile that would put him at risk.
Similarly, in relation to ground 3(b), it was open to the Authority to conclude that the applicant was not subjected to sexual violence in circumstances where this was not a matter raised in the SHEV interview and where this was only raised by the applicant’s representative when she was invited to make submissions at the interview. There is nothing illogical or irrational about the Authority’s reasoning in this regard.
Similarly, the findings made and referred to at grounds 3(e), (f), (g) and (h) were reasonably open on the material before the Authority. As to ground 3(i), whilst the Authority may have had this material before it, the weight to be given to such material, and the balancing of competing information, is a matter for the Authority.
With regard to ground 3(j), I refer to and repeat the reasoning set out above in relation to ground 2(a).
For each of these reasons, ground 3 is not made out.
CONCLUSION
As none of the grounds of review are made out, I make an order set out at the commencement of these reasons dismissing the applicant’s application.
In circumstances where the applicant’s application has been dismissed, it is appropriate that the applicant also be ordered to pay the first respondent’s costs, in a sum to be fixed if not agreed, and so order.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 22 March 2024
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