FUO17 v Minister for Home Affairs
[2024] FedCFamC2G 483
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUO17 v Minister for Home Affairs [2024] FedCFamC2G 483
File number: MLG 2879 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 31 May 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa (subclass 790) – consideration of whether the Authority failed to consider a relevant consideration – whether the Authority erred in its statutory task under ss 473DC or 473DD of the Migration Act 1958 (Cth) – Authority not obliged to request or seek further information – whether the Authority acted illogically or irrationally – application seeking impermissible merits review by the court – findings made reasonably open to the Authority on the material before it Legislation: Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(b), 36(2), 473DC and 473DD Cases cited: AMT15 v Minister for Immigration and Border Protection [2018] FCA 366
ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426
DUZ17 v Minister for Home Affairs [2019] FCA 1593
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Citizenship v Li [2013] HCA 18
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 152 Date of last submission/s: 15 February 2024 Date of hearing: 15 February 2024 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Vrachnas & Co Lawyers Counsel for the First Respondent: Ms K Chan Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 2879 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUO17
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs.
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:
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’), by which the Authority affirmed a decision of a delegate of the First Respondent (‘Minister’) to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (‘SHEV’).
BACKGROUND
The following background is largely taken from the applicant’s written submissions, with which the Minister does not take issue.
The applicant is a Tamil Hindu from the North of Sri Lanka. He was born in 1993.
His father is a wealthy jeweller. During the civil war, the applicant and his family were displaced. He says that his family spent some time in a camp before returning home. The applicant further claimed that he did not spend time in the camp but rather stayed with a relative so that he could continue his studies. This claim was ultimately not accepted by the Authority.
The applicant assisted his father in his jewellery business as his father could not read. The applicant claimed that his father’s business was next to an abandoned house which was used by the LTTE’s financial head, S. The applicant also claimed that his father, as a wealthy businessman, paid taxes to the LTTE. The Authority noted the applicant’s evidence during his interview that his family knew S, who often visited.
The applicant claimed that in 2009 he was detained twice by the Sri Lankan forces about his supposed connection to S and the LTTE. The applicant also claimed that on the second occasion in which he was detained, he was tortured, his toenail was pulled out, he was hit with a rifle butt and, in an attempt to defend himself, his wrist was broken. On both occasions, the applicant claimed that his father arranged his release.
In 2011 the applicant travelled (legally) to Malaysia where he spent some months and registered with the UNHCR. After his visa expired and on the advice of his father, the applicant returned to Sri Lanka on the understanding that the situation had improved, and he would be safe.
The applicant claimed, however, that in 2012, he was again detained and interrogated. He also claims that he was beaten with a shock absorber and a hose filled with gravel. The applicant says that his father then made a complaint to the Human Rights Commission (‘HRC’), and in response a false criminal charge was brought against him. He says he went to court and was released although he was given a further date on which he was to return to court in respect of this charge.
The applicant says that he was afraid and did not return to court as required. Rather he says that he stayed with friends for about three months and then arranged to leave Sri Lanka illegally by boat.
The applicant arrived in Australia in October 2012 as an irregular maritime arrival.[1]
[1] Court book at pages 13 and 68.
Application for a SHEV on July 2016
On 1 July 2016, the applicant applied for a SHEV, assisted by a migration agent.[2] Annexed to the applicant’s SHEV application was a statement of the applicant, in which he set out his background and summarised his claims for protection.[3]
[2] Court book at pages 48 to 84.
[3] Court book at pages 88 to 93.
On 28 November 2016, the applicant was invited to attend an interview with an officer of the Department of Immigration and Border Protection (‘the Department’).[4] In response, the applicant’s representative confirmed the applicant’s attendance, to be accompanied by a migration agent.[5]
[4] Court book at pages 133 to 115.
[5] Court book at page 116.
On 15 December 2016, the applicant and his representative attended an interview with the Department (‘SHEV interview’). Subsequently, on 23 January 2017, the applicant’s representative provided a ‘post-interview submission’ to the Department.[6]
[6] Court book at pages 117 to 139.
On 13 June 2017, a delegate of the Minister refused the applicant’s application for a SHEV.[7]
[7] Court book at page 144.
Referral to the Authority on 14 June 2017
On 14 June 2017, the delegate’s refusal decision was referred to the Authority pursuant to Part 7AA of the Migration Act 1958 (Cth).[8]
[8] Court book at page 167.
On 14 July 2017, the applicant wrote to the Authority seeking an extension of time by which to provide submissions to the Authority in support of his application.[9] The Authority replied on the same day, indicating that any submissions received by the applicant prior to the decision being made may be considered, noting that no decision would be made before 21 July 2017.[10] It does not appear however, that the applicant provided any submissions to the Authority.
[9] Court book at page 176.
[10] Court book at page 177.
On 1 December 2017, the Authority affirmed the delegate’s decision and refused to grant the applicant a SHEV.[11]
[11] Court book at page 179.
The Authority’s decision of 1 December 2017 is set out at pages 180 to 197 of the court book.
AUTHORITY’S DECISION
The Authority accepted that the applicant was of Tamil ethnicity and that he was born in the Northern Province in Sri Lanka. It also accepted that his eldest brother is in Switzerland having sought asylum there and that two other brothers are in Batticaloa and have been there since they were young.[12]
[12] Authority decision record dated 1 December 2017 at paragraph [6].
The Authority also accepted that the applicant’s father had sought asylum in France in 1995 but that this application was refused and the applicant’s father was sent back to Sri Lanka in 2001. The Authority also accepted that the applicant’s family moved to an LTTE controlled area when he was young.[13]
[13] Authority decision record dated 1 December 2017 at paragraph [6].
At paragraph [7], the Authority discussed the applicant’s claims that his father undertook LTTE training in place of one of his sons. After discussing the evidence given by the applicant about this, and for the reasons given, the Authority rejected this claim.
At paragraph [8], the Authority accepted that the applicant’s father was a wealthy jeweller, although it noted that the applicant had not claimed to fear harm on this basis. Moreover, the Authority did not accept the applicant’s claims arising from alleged extortion incidents.
The Authority accepted that the applicant and his family lived in a displacement camp in 2007 and remained there for about six months. It also accepted that ‘the applicant was possibly interviewed while in the camp as were others’. The Authority did not, however, accept that the applicant came to the attention of the authorities in Sri Lanka because, as claimed, he was not in photographic records and that his absence was due to him living with his aunt rather than with his parents in the camp to which the family had been moved.[14]
[14] Authority decision record dated 1 December 2017 at paragraph [10].
At paragraph [11], the Authority deals with the applicant’s claims to fear harm due to his and his family’s association with an LTTE official, S. The Authority also noted that the applicant’s claims regarding S changed over time. Ultimately, the Authority concluded:
… I consider it highly likely he has exaggerated his connection to [S] to strengthen his claim. I do not accept his family knew or were frequently visited by [S] or that the authorities suspected this or that they had LTTE-links at that time.[15]
[15] Authority decision record dated 1 December 2017 at paragraph [11].
At paragraphs [12] to [13], the Authority considered the applicant’s claims about having been detained in 2009 and accepted that ‘he may have been briefly detained and questioned along with other young Tamil males, on suspicion of LTTE links’.
At paragraph [14], the Authority then set out the applicant’s claims that the Sri Lankan authorities believed he had been giving money to the LTTE because of his work with his father’s business. The Authority did not accept this claim. At paragraph [15] the Authority again touched on the applicant’s evidence about his alleged detentions in 2009 and reiterated that it did not accept the applicant’s evidence, including that he had been detained and questioned because of his links to S. At paragraph [17] the Authority identified what it considered to be inconsistencies in the applicant’s claims that his father had paid to have him released and did not accept this claim.
The Authority did accept, at paragraph [16], that it was possible that the applicant’s father did pay forced taxes to the LTTE during the conflict.
The Authority then discussed further claims made by the applicant for the first time in his SHEV interview and claims made in his arrival interview but not expanded upon subsequently. The Authority did not accept that the applicant or his family were wanted because they had propaganda in their home or because they were on a list of people who supported the LTTE.[16]
[16] Authority decision record dated 1 December 2017 at paragraph [18].
At paragraphs [19] to [21] the Authority considered the applicant’s claims and evidence regarding a second detention in 2009 during which the applicant was allegedly beaten and tortured and only released after his father paid his captors. Ultimately, the Authority described his evidence in relation to these matters as ‘unconvincing’.[17] At paragraph [24] the Authority considered, but rejected, the possibility that his poor memory was caused by the traumatic events he had endured.
[17] Authority decision record dated 1 December 2017 at paragraphs [22]-[23] and [25].
The Authority then went on to consider the applicant’s claim to have been in hiding from August 2010 until October 2012, but did not accept these claims.[18]
[18] Authority decision record dated 1 December 2017 at paragraphs [26] to [30].
Similarly, the Authority considered the applicant’s further claim that he was again detained for questioning in July 2012 after he returned to Sri Lanka.[19] The applicant claimed that he was severely mistreated and that the authorities tried to extort money from his father for his release. In addition, the applicant claims that after his father complained to the HRC, false allegations were made against him in order to justify his detention. The applicant claimed that consequently, when he left for Australia, there was an outstanding warrant issued for his arrest.
[19] Authority decision record dated 1 December 2017 at paragraphs [31] to [40].
The Authority considered the evidence given by the applicant in relation to these claims, including certain documents which the applicant provided to corroborate his claims. Ultimately, the Authority did not accept that the applicant was detained and mistreated in 2012. Nor did it accept that the applicant’s father complained to the HRC or that the applicant was falsely accused and that there is an outstanding warrant against him.[20]
[20] Authority decision record dated 1 December 2017 at paragraph [37].
At paragraph [38] the Authority stated that it did not accept that the applicant was of ongoing interest to the authorities after his initial detention in 2009. At paragraph [39], the Authority also considered, but did not accept, that the applicant received a letter at his home after having left Sri Lanka from the ‘fourth floor of the CID’, where the CID exacts torture and from which no one has ever returned.
Ultimately, at paragraph [40], the Authority concluded:
… In light of the above and the large number of material inconsistencies, fabrication and confusion in the applicant’s claims already detailed, I consider it much more likely that the applicant may have fled to Australia to seek a better life and possibly further education but I do not accept it was because he was wanted by the authorities at that time.
At paragraph [41], the Authority considered and accepted the applicant’s evidence that neither he nor his family had links to the LTTE or were otherwise involved in political or anti-government activities. The Authority accepted that the applicant had departed Sri Lanka illegally.[21]
[21] Authority decision record dated 1 December 2017 at paragraph [42].
The Authority then went on to set out the statutory criteria in its refugee assessment. It also considered the applicant’s evidence and submissions. The Authority also set out the country information to which it had regard and its assessment of that country information. At paragraph [51], the Authority concluded that based on its assessment of the applicant’s profile and the available country information, it did not find that there was ‘a real chance that the applicant will be detained, interrogated, tortured, extorted or otherwise harmed on his return to Sri Lanka’ for a convention reason.
At paragraph [52], the Authority accepted that on his return to Sri Lanka the applicant may be identified as a returning asylum seeker but did not accept that this would not result in a real risk of harm to the applicant. The Authority then went on to consider whether the applicant would face a real risk of harm as a person who had left Sri Lanka illegally and concluded he would not. For each of these reasons, the Authority found that the applicant did not meet the refugee criteria.[22]
[22] Authority decision record dated 1 December 2017 at paragraph [60].
The Authority then went on to consider whether Australia’s complementary protection obligations were engaged and concluded that they were not.[23]
[23] Authority decision record dated 1 December 2017 at paragraphs [61] to [65].
The Authority therefore affirmed the delegate’s refusal of a protection visa.
PROCEEDINGS IN THIS COURT
On 29 December 2017, the applicant filed his application for judicial review in this court. The applicant subsequently obtained legal representation in 2018 and filed an amended application on 5 February 2024 ahead of the hearing in this matter.
The amended application raises 3 grounds of review with particulars, which are set out in more detail below.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant claims that:
1.The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.
Particulars
(a)The Authority did not consider all the material and information before it relating to the prevalence and culture of torture and abuse in Sri Lanka, including the abuse of persons in detention and of persons with links to the LTTE.
(b)Further or in the alternative to particular (a) to this Ground, the Authority did not consider as required by law the question whether the Applicant may suffer torture or other relevant harm during any period he may be detained on return to Sri Lanka.
It is common ground that the Authority must consider relevant considerations as well as all claims which are made or which clearly arise from the material before it. It is also common ground that a failure to do so can amount to a jurisdictional error.
It is submitted for the applicant that the Authority is also required to read, understand, grasp and consider seriously the material before it.[24] The Minister does not take issue with these statements of principle. The dispute between the parties relates to the application of those principles to the facts in this matter.
[24] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1’) at [21]-[27].
The applicant submits:
… the Authority did not consider all the material and information before it relating to the prevalence and culture of torture and abuse in Sri Lanka, including abuse of persons in detention and of persons with links to the LTTE.[25]
(Emphasis in original)
[25] Amended application filed on 5 February 2024 at ground 1(a); Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [12].
In the alternative, the applicant submits that the Authority did not consider whether the applicant may suffer torture or other relevant harm during any period that he may be detained if he were to return to Sri Lanka.[26]
[26] Amended application filed on 5 February 2024 at ground 1(b); Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [13].
In support of ground 1, the applicant says the Authority did not consider, or overlooked, country information which formed part of a post hearing submission provided to the Authority by the applicant’s representative on 23 January 2017. Relevantly, the applicant points to country information before the Tribunal which:
(a)supported the applicant’s claim to fear harm as a Tamil with imputed links to the LTTE;
(b)supported the applicant’s claim to fear harm as a returned asylum seeker, particularly in circumstances where he says that there is an extant arrest warrant for him; and
(c)refers to the existence in Sri Lanka of an ingrained culture of oppression, whilst the number of complaints of torture have reduced, they continue to emerge, that sexual violence is used against detainees including individuals who are detained on their return to Sri Lanka
The applicant also refers to country information which notes that ‘eradicating torture in Sri Lanka will require a radical transformation which has not been possible in the country yet despite political developments’ and that the authorities are not held accountable for the torture which occurs.[27] The applicant submits that this information was not considered by the Authority. Nor, according to the applicant, did the Authority have regard to paragraphs [4.12] to [4.22] of the DFAT Country Information Report 2017. The applicant says that these specific paragraphs expressly raise the risk of torture perpetrated by the Sri Lankan military and intelligence forces.[28]
[27] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [14].
[28] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [17].
In addition, the applicant submits that it is of relevance that DFAT itself acknowledged in its report that it did not monitor what happens to asylum seekers who return to Sri Lanka. The applicant submits that this was a relevant factor to consider when determining whether the applicant faced a risk of harm if he were to be returned to Sri Lanka.[29]
[29] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraphs [18] to [19].
The applicant also submits that the applicant also claimed to have received a letter directing him to attend the fourth floor of CID in Colombo which was well known as a place where torture occurred.[30]
[30] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [15].
The applicant says that when this material is viewed collectively, it is evident that it established that even after the end of the war and a change of government in 2015, there was an ‘entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences’.[31]
[31] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [19].
It is submitted for the applicant that although some references to this material are contained in the Authority’s reasoning, the Authority did not ‘consider’ it in the sense contemplated in Plaintiff M1, namely, the ‘breadth and depth of the information and the core of the issue of entrenched torture’.[32] The applicant also submitted that the Authority failed to have regard to the comments in the 2017 DFAT report when considering the risk to the applicant if he were to return to Sri Lanka and be detained on his return.
[32] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [19].
The applicant submits that this failure amounts to a jurisdictional error. Moreover, it is further submitted that had the Authority engaged with this material, it’s ultimate decision may have been different and therefore its failure to do so was material.[33]
[33] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [20].
As noted by Justices Madgwick and Conti in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80, at paragraph [26]:
The Tribunal Member, it is trite, was obliged to come to what he considered the correct or preferable decision on all the material before him. It is implicit in that task that the Tribunal should carefully attend to such material. What is involved here is not simply the Tribunal’s silence as to some of the evidence going to an issue; an issue was itself not addressed. In the view to which we have come, there was, to that extent, a failure to carry out the review function.
At paragraph [29], Justices Madgwick and Conti went on to adopt the reasoning of Justice Allsop (as his Honour then was) in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 (‘Htun’), where his Honour stated, at paragraph [42]:
… To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
Similarly, in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at paragraph [58], where the Full Court of the Federal Court after referring to the comments in Htun about the nature of the review function, 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 … By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant … 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.
…
[63]It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ … But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
As stated by Justice Katzman in ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426, at paragraph [35]:
… a finding that a decision maker has not considered a claim is not to be made lightly … Moreover, a decision maker’s reasons should not be construed ‘minutely and finely with an eye keenly attuned to the perception of error’ … And the Authority’s reasons should be read as a whole …
(Citations omitted)
In this case, to the extent that ground 1 relies on material provided as part of the post-hearing submission, there is no proper basis in my view for an inference to be drawn that the Authority failed to consider it. The Authority expressly referred to the fact that it had regard to the material given to it by the Secretary under section 473CB of the Act. The post hearing submission formed part of that material.
Moreover, as conceded by the applicant, the question of what country information is considered and the weight to be given to it, are matters for the Authority. The Authority does not need to refer to every piece of evidence before it. As noted in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, at paragraphs [46] to [47]:
[46]It is plainly not necessary for the Tribunal to 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. Moreover there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. 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.
[47]The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
These observations were adopted in the context of an application before the Authority under Part 7AAA of the Act in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214 at paragraph [36].
In addition, it is important to have regard to the context in which the country information in the post hearing submission was provided. In a letter to the delegate, the applicant’s representative said:
We refer to the interview conducted on 15 January 2017 and take this opportunity to provide further information in support of [the applicant’s] application. Our submission outlines our client’s claims for protection and demonstrates with reference to evidence provided, independent information and relevant law that they meet the criteria under s 36(2)1 (sic), and are a person to whom Australia owes protection obligations. We also rely on all previous oral and written evidence provided by of (sic) on behalf of our client.[34]
(Emphasis added)
[34] Court book at page 118.
The submission then goes on to state that the applicant faces a real chance of harm if returned to Sri Lanka due to:
(a)his ethnicity as a young Tamil male originating from a former LTTE-controlled area;
(b)as a member of a wealthy Tamil family who has provided financial resources to the LTTE during the war;
(c)his father’s participation in training by the LTTE;
(d)his parents’ complaint to the HRC which has been seen as critical of the Sri Lankan government of mistreatment by the SLA;
(e)due to his business being located close to the financial administrator of the LTTE named ‘S’ and frequent visits from ‘S’ to his family home;
(f)the discovery of LTTE propaganda in the form of a picture of the LTTE leader during a raid by the SLA on his family’s property;
(g)as a failed asylum seeker; and
(h)as a person who is the subject of a court case which he says relates to a false charge against him.
The applicant’s representative then goes on to say:
We submit that as a result of the above reasons, [the applicant] faces a real risk of serious harm at the hands of the Sri Lankan Authorities, in the form of:
•Harassment;
•Arbitrary arrest and detention;
•Torture;
•Cruel, inhuman and degrading treatment or punishment; and
•Death.
Ground 1(a) cannot be maintained when the Authority’s reasons are read as a whole and fairly. It is clear from the detailed summary of the applicant’s claims at paragraph [5] of the decision record, that the Authority understood that the applicant was claiming to fear harm as a result of the the Sri Lankan authorities believing he and his family had links to the LTTE.
It is also clear from the Authority’s findings that it accepted that the applicant lived in an LTTE controlled area when he was young. The Authority, however, did not accept that the applicant’s father had trained with the LTTE nor that he did so in place of the applicant (or indeed in place of one of his other sons).
The Authority also accepted that the applicant’s father was a wealthy jeweller in Sri Lanka but did not accept that his father had been the subject of extortion as claimed.
The Authority also accepted that the applicant had been in a camp with his parents in 2007 after the LTTE lost control of their area but did not accept the applicant’s claims that he had moved to live with his aunt so he could continue his studies, or that he was absent from photos from the camp adding to his interest to the Sri Lankan authorities.
The Authority rejected the applicant’s claim that he and/or his family lived near S and were frequently visited by him.
The applicant submits that although the Authority did not accept everything that he said happened to him in Sri Lanka, it did accept that when he was detained and questioned in 2009, he was questioned about his association with S. Having done so, the Authority then failed to consider the risk of harm to the applicant arising from this association (actual or imputed) with a senior member of the LTTE. It is submitted that as a consequence, the Authority’s decision is affected by jurisdictional error.
I am not satisfied that on a fair reading of the Authority’s decision, it can be said that such a finding was made. Although the Authority accepted that the applicant may have been detained and questioned on suspicion of LTTE links and also noted that the applicant had been consistent in his claim that he was questioned when detained in 2009 about his links to S, the Authority does not actually make an express finding that it accepted that the applicant had been questioned about S.
It was submitted for the Minister that the Authority’s conclusion that the applicant had been detained immediately after the war on suspicion of LTTE links was because of routine monitoring of Tamils by Sri Lankan authorities and was not evidence of a specific finding that the applicant was detained and questioned due to his alleged links to S. I accept this submission. It is consistent with a fair reading of the Authority’s reasons as a whole, particularly when paragraph [13] of the Authority’s reasons are read together with paragraphs [11] and [45].
The Authority did not accept that the Sri Lankan authorities believed the applicant was working for his father in 2009, was giving money from his father’s business to the LTTE, or that he was detained again as a result of being suspected of financially supporting the LTTE. Nor did the Authority accept that the applicant had been detained as a result of suspicions arising from his absence from photographs taken in the camp, as the Authority had not accepted that he had in fact been absent from such photographs.
The Authority did, having regard to country information, accept that the applicant’s father may have paid taxes to the LTTE during the conflict.
The Authority did not accept that the applicant’s father paid to have the applicant released. Nor did the Authority accept that the applicant and his family were on a list of families who were said to support the LTTE, or that the Sri Lankan authorities found propaganda in their home when raided after they were moved to the camp.
The Authority did not accept the applicant’s claim to have been detained for a second time in 2009 during which he was beaten and physically harmed during questioning about his relationship with S. Moreover, the Authority did not accept that the applicant was wanted by the Sri Lankan authorities in 2009 because of suspected LTTE links or otherwise.
Nor did the Authority accept that the applicant was unemployed and in hiding during the period from 2010 to 2012, that he fled to Malaysia because he feared for his life, or that the CID looked for the applicant and harassed his father in doing so.
The Authority also did not accept that the applicant was again detained in July 2012 and that he was severely mistreated during this detention. Nor did it accept that the applicant was falsely charged with an offence and left Sri Lanka without attending court as directed and that consequently a warrant for his arrest was issued and remained outstanding. In coming to this view, the Authority found that the applicant was not of interest to the Sri Lankan authorities in 2012. The Authority also did not accept that the applicant hid with friends for about three months prior to departing Sri Lanka as alleged.
As the Authority had formed the view that the applicant was not of interest to the authorities prior to his departure from Sri Lanka, it also did not accept his claim that since his departure, the CID sent a letter to his home from the ‘fourth floor of the CID’ telling him that he was wanted for questioning in relation to a case against him.
When read fairly and as a whole, it is apparent that the Authority considered the claims advanced by the applicant to fear harm if he were to return. This included his claim to fear harm due to any perceived links that he might have to the LTTE and, in particular, to S.
In summary, the Authority concluded that aside from one period of detention in 2009 which it found that the applicant ‘may have been detained and questioned along with other young Tamil males, on suspicion of LTTE links’ the Authority largely rejected the applicant’s claims and concluded that he did not have a profile that would put him at risk.
The Authority’s findings were reasonably open to it on the evidence before it. Moreover, they provide a rational and reasonable explanation as to why the Authority then did not expressly refer to the country information that the applicant had submitted which dealt with a culture of torture and a lack of accountability within the Sri Lankan authorities. The applicant’s claim was not that he feared that he would be tortured per se if he were to return to Sri Lanka. Rather, his claim was that he feared that he would be harmed, including that he would be subjected to torture because of his claimed profile. Having found that he did not have the claimed profile, it was not necessary for the Authority to expressly refer to the country information that addressed the culture of torture.
The Authority’s failure to expressly refer to that country information in its reasons for decision, does not evidence an error.
For similar reasons, ground 1(b) is also not made out.
The Authority’s failure to expressly refer to those parts of the DFAT report which dealt with torture, is not evidence that the Authority did not have regard to the DFAT report, but rather indicates that in light of the way that the applicant advanced his claims and the factual findings made by the Authority, it was open to the Authority to consider that those aspects of the DFAT report were not material and did not need to be expressly referred to.
As discussed above, the Authority gave cogent reasons for its conclusions regarding the possibility of harm to the applicant on his return to Sri Lanka.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant claims that the Authority did not correctly apply section 473DC and s 473DD of the Act in not seeking new information either during the interview or otherwise about the applicant’s father’s affidavit, or the other identified documents upon which the applicant relied.
Relevantly at paragraphs [35] and [36], the Authority stated:
35.The applicant provided the delegate with a number of documents in support of his claims. While the affidavit dated 4 December 2012 provided by his father states that the applicant was detained and mistreated on 1 July 2012 it does not state he was falsely accused of a crime, that he had to attend court or that he had a second court hearing in December and this is despite the fact that the affidavit would have been made after all this should have been known. The letter provided by the politician dated December 2012 also only states that the applicant was detained on 1 July and later released with no mention of a false allegation, hearing or arrest warrant. There is no suggestion the politician had first-hand experience of the incident, and it appears he was relying on the account of events from the person who instructed him to draft the letter, possibly the applicant’s father. The card provided by the applicant purportedly issued by the HRC (HRC document) states the complaint was received on 2 July and that he was released on 3 July 2012.
36.I consider it highly unlikely the authorities would have released the applicant after just two days for such a serious crime, particularly in an environment where the authorities were highly sensitive of the re-emergence of the LTTE. The applicant provided two message forms from the Sri Lanka Police. Only the one dated 29 September 2016 was translated into English, which translation was provided by the applicant’s lawyers after the SHEV interview. The message form states ‘Inform the undermentioned person who lives in the given address of your Police Division to appear at Crime Investigations Department (illegible) at 9.00 on 08-10-2016, to take a statement regarding an incident related to a crime. (Illegible).’ The message form does not state he is wanted for a specific crime, does not state the applicant previously attended court or missed a hearing or has an arrest warrant out against him, despite the fact that in 2016 all these things should have been known. I consider it highly unlikely that the police would send a message seeking the applicant for the purposes of attending their offices for questioning in 2016 all these things should have been known. I consider it highly unlikely that the police would send a message seeking the applicant for purposes of attending their offices for questioning in 2016 for a crime he is alleged to have committed some four years earlier in 2012, particularly given, based on his own claims, that they would have known he had already fled Sri Lanka at this time. In light of the above, the significant inconsistencies in the applicant’s claims in relation to this incident and the well reported incidence of document fraud in Sri Lanka, particularly in relation to sponsor letters, I do not accept the message form or HRC document as genuine and I place little weight on the father’s affidavit and the politician’s letter.
It is submitted for the applicant that in failing to obtain new information to address its concerns regarding the father’s affidavit, the letter by the Sri Lankan Member of Parliament, the message from the Sri Lankan police or the document from the HRC, the authority acted unreasonably. It is submitted that the Authority ought not have dismissed these documents without first seeking further information.[35]
[35] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraphs [22] to [23].
In support of this submission, the applicant refers to and relies upon the reasoning in AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 (‘AMT15’). In AMT15, the applicant claimed to fear harm as a result of his involvement with the Tamil National Alliance (TNA). Following an adverse decision by a delegate of the Minister, the applicant in AMT15 sought review before the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal found the applicant not to be a witness of truth.
Relevantly, the Tribunal rejected the applicant’s evidence that he had been involved with the TNA, contrary to the findings made by the delegate. The Tribunal in AMT15 went on to say, as reproduced in paragraph [12] of Tracey J’s reasons:
24.… To the department, the applicant submitted documents purportedly from the TNA relating to the conference on 27 May 2012 and another party event. The Tribunal has carefully considered those documents but they do not overcome the concerns the Tribunal holds about the applicant’s credibility and the Tribunal does not give evidentiary weight to them. Accordingly, the Tribunal disbelieves claims he made that because of his political activities his property was damaged in 2010; he had a verbal conflict with people from other parties; he was threatened not to attend a TNA conference in May 2012; that he attended that conference and that men came to his home after that to apprehend him.
In considering whether in reaching this conclusion the Tribunal had erred, Tracey J in AMT15 said, at paragraphs [45] to [47]:
[45]The document, presently under consideration … 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 … 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.
[46]In Minister for Immigration and Citizenship v SZAI … at [25] the plurality accepted ‘that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review’. Such a failure would, in turn, constitute jurisdictional error.
[47]The Tribunal was not under any obligation to gather evidence or to make a case for AMT 15 … However, in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the member of the Sri Lankan Parliament whose name was printed on what appeared to be official Sri Lankan Parliamentary letterhead, it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to AMT15. Questions might also have been asked about whether AMT15 held the office in the TNA to which the letter referred and whether AMT15 had attended the party meeting to which the agenda related. The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15’s credibility and some of his claims of political involvement, constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction ….
Counsel for the applicant conceded that AMT15 related to a review of a Tribunal decision, not a decision of the Authority under Part 7AA, and that the IAA is constrained by the provisions of Part 7AA of the Act. However, it was submitted for the applicant that Part 7AA includes the power under section 473DC to get information in certain circumstances.
The applicant acknowledged that the Authority is not required to get new information rather it is permitted to do so (in certain circumstances) and it is limited in the circumstances in which it can consider any such new information.
Sections 473DC and 473DD of the Act confer a discretion on the Authority to get and consider new information in certain circumstances. That discretion must be exercised within the bounds of legal reasonableness. The bounds of legal reasonableness must be assessed by reference to the context in which the statutory provision arises. In this case, section 473DC and section 473DD form part of Part 7AA of the Act. The scheme established in Part 7AA provides that, other than in very limited circumstances, the Authority is to conduct a review ‘on the papers’, i.e. without a further interview of the applicant. In this context, whilst the Authority has the ability to seek new information, there is no obligation to do so. So much is evident from section 473DC(2) of the Act, which provides:
The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
As noted by Justice Beach in DUZ17 v Minister for Home Affairs [2019] FCA 1593 (‘DUZ17’), at paragraph [41]:
… whilst it must be accepted that the power to get new information is to be exercised reasonably, what is reasonable is to be understood within the statutory context, including in this case that the review is in the ordinary course to be conducted on the papers. But in considering the statutory context, I accept … that the context is not just Div 3 of Pt 7AA but also the broader statutory context of Pt 7AA and even more broadly the context of and the seriousness of the issues dealt with under, inter-alia, ss 36 and 65.
It is also noteworthy that in this case the credibility of the documents now relied upon was in question before the delegate. In the delegate’s decision, the delegate said:
The applicant has provided a message form from the Sri Lankan Police which is dated 29 September 2016, and an English translation. The translation states the applicant is to be informed to appear at the Crime Investigations Department on 8 October 2016 to take a statement regarding an incident related to a crime. The applicant has also provided a copy of a card from the Human Rights Commission of Sri Lanka with a complaint number and a handwritten entry indicating he was released on 3 July 2012. The applicant has also provided a copy of an affidavit from his father, stating the applicant was taken by the police and CID on 1 July 2012 and tortured for an unknown reason, and the applicant’s father has registered a complaint to the HRC about this matter. The applicant has also provided a copy of a letter from Pon. Selvarasa, a Member of Parliament for the Batticaloa District, dated 27 December 2012, which states that on 1 July 2012 the applicant was taken by the police and investigated by the CID, and tortured by them without any reason.[36]
[36] Court book at page 155.
The delegate then went on to reject the applicant’s claims of detention and torture and the claim that he has an outstanding warrant for his arrest. Relevantly, the delegate went on to expressly say:
I note the DFAT assessment that document fraud is prevalent in Sri Lanka and I consider the documents the applicant has provided, in support of his claims to have been arrested and tortured, have no credibility. I find the document provided by the applicant, which purports to be a demand notice from the Sri Lankan police for him to attend the CID headquarters in Colombo in October 2016, lacks the detail that would be reasonably expected in such a document and I place no weight on this document.
Notwithstanding these adverse credibility findings, the applicant did not request permission to provide further information to the Authority.
Having regard to the totality of the material before it, it was open to the Authority to find as it did that the documents that the applicant sought to rely upon were not genuine. It was not required to put the applicant on notice that it was considering coming to this conclusion.[37] Whilst it had the power to seek and consider new information if the statutory preconditions for doing so were met, the Authority was not required to do so. It’s failure to do so in this case did not give rise to any jurisdictional error, either on the grounds of legal unreasonableness or otherwise.
[37] See DUZ17 at paragraph [43] and the cases referred to therein.
The conclusions made by the Authority about the documents were reasonably open on the evidence before it.
For these reasons, ground 2(a) is not made out.
By ground 2(b), the applicant claims that the Authority erred in interpreting or applying the terms of the Act:
(a)‘well-founded fear of persecution’ in section 5H(1)(a);
(b)‘real chance’ in section 5J(1)(b); and
(c)‘real risk’ in section 36(2)(aa).
In support of this aspect of ground 2, the applicant points to some of the factual findings made by the Authority as well as specified country information before the Authority. For the following reasons, this aspect of ground 2 is also not made out.
It is apparent from a fair reading of the Authority’s reasons that it understood the ‘real chance’ and ‘real risk’ test.[38] The applicant does not identify any part of the Authority’s reasons which establish that the Authority misunderstood or misapplied these tests. Rather, the applicant seeks to argue that a different outcome ought to have been reached. Respectfully, this effectively seeks impermissible merits review.
[38] For example see the Authority decision record dated 1 December 2017 at paragraphs [43], [44] and [61] to [62].
Ground 3
By ground 3, the applicant claims that the Authority, in reaching certain factual findings without a logical or probative basis, acted in a legally unreasonable manner or was illogical.
Again, the parties agree on the principles which apply in relation to ground 3 although they differ on their application in this case.
The applicant relies upon the observations made by the plurality in Minister for Immigration and Citizenship v Li [2013] HCA 18 (‘Li’) (Hayne, Kiefel and Bell JJ) where their Honours said, at paragraph [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 … an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.
Accepting that legal unreasonableness is not limited to irrational or bizarre decisions or indeed decisions to which no reasonable person may have arrived, it is well settled that it is not sufficient to make out a ground of legal unreasonableness to show that a different decision maker may have come to a different conclusion in circumstances where reasonable minds might differ.
As also stated by Hayne, Kiefel and Bell JJ in Li, at paragraph [66]:
… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
Similarly, it is well settled that in order for a finding of fact to be considered ‘illogical’ or ‘irrational’ and thereby give rise to a finding of jurisdictional error, it is not sufficient for the matter to be one in respect of which reasonable minds might differ.[39]
[39] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at paragraph [148]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60].
The applicant asserts that in many of its findings, the Authority’s reasoning was unreasonable in that it adopted a position or assumption that any claim made after the initial entry interview or initial visa application should not be accepted. When one considers the Authority’s reasoning as a whole and in context, this is not made out. Whilst at times the Authority did refer to the fact that some claims were made late by the applicant, this was not the sole reason for rejecting the applicant’s claims. It was often, if not entirely, one factor to which the Authority had regard in declining to accept the applicant’s claims. This reasoning was open to the Authority and does not disclose error.
By ground 3(a), the applicant claims that the Authority was unreasonable in rejecting the claim that the applicant’s ‘father undertook training with the LTTE in place of one of his sons’ at paragraph [7]. When paragraph [7] is read in its entirety, it is apparent that the Authority did not reject this claim simply because it was not consistent with claims made in his arrival interview, but rather the Authority sets out in some detail the basis on which this claim was rejected, including its view of the applicant’s own evidence. The last sentence of paragraph [7] says:
Given the significant inconsistencies and the applicant’s confusion during the SHEV interview in relation to this claim, I do not accept this claim.
This finding does not lack an evident and probative basis. It was reasonably open on the evidence before the Authority and does not disclose any jurisdictional error.
By grounds 3(b) and (d), the applicant takes issue with the way in which the Authority dealt with claims made regarding his links (actual or imputed) to S. The applicant asserts that having been prepared to accept that the applicant ‘may have been briefly detained and questioned … on suspicion of LTTE links’ at paragraph [13], it was then unreasonable to find at paragraph [11] that it did ‘not accept his family knew or were frequently visited by [S] or that the authorities suspected this or that they had LTTE-links at that time’.
This aspect of ground 3 relies upon the Authority’s preparedness to accept that the applicant had been detained and questioned due to suspicions of LTTE links, included a finding that he was detained and questioned about S. It is clear when one reads the Authority’s reasons as a whole and fairly, that it expressly stated that it did not accept that the applicant or his family knew S or financed the LTTE or that the applicant was suspected of having done so. So much is clear from the Authority’s reasons at paragraphs [11] and [21].
Having regard to these express findings and for reasons discussed earlier, I do not accept that the finding made in paragraph [13] that the applicant may have been detained and questioned on suspicion of LTTE links implied an acceptance that he had been detained and questioned about suspicion of links to S. This is not what the Authority said, nor does such a reading emerge from a fair reading of the Authority’s reasons as a whole and fairly.
Similarly, the applicant claims that the Authority was unreasonable in finding at paragraph [15] ‘I do not accept [S] frequently visited the applicant’s home or knew the applicant. I do not accept he was detained and questioned because of this or on suspicion of this’.
When paragraph [15] is read in its entirety and in context of the other findings made, and the reasons for those findings, it is clear that there is a logical and probative basis for this conclusion. Relevantly, at paragraph [15], the Authority noted that the applicant, in giving evidence at the SHEV interview, appeared to confuse the alleged first and second claimed detentions in 2009, that he raised for the first time in his SHEV interview the suggestion that he was rounded up because he was absent from photographs taken in the camp, a claim not accepted by the Authority. Ultimately, the Authority went on to conclude that it had formed the view that the applicant had introduced the claim to have been rounded up due to being absent from the camp photographs ‘in an effort to strengthen his claim that he was being specifically targeted’.
When read in context, the conclusions reached in paragraph [15] were reasonably open to the Authority. The fact that, as part of its reasoning, the Authority had regard to the applicant first claiming to have actually known S in his SHEV interview, was not unreasonable or irrational.
There is no unreasonableness or illogicality in the Tribunal’s conclusions in this regard.
By ground 3(c), the applicant claims that the Authority was unreasonable in not accepting that the Sri Lankan ‘authorities believed the applicant was working in his father’s business in 2009 or that he was giving money from his father’s business to the LTTE’ at paragraph [14]. In paragraph [14], the Authority noted the applicant’s claim that he had been working for his father’s business from the age of 15 was not consistent with the statement made by the applicant in his arrival interview and his SHEV application form dated 31 May 2016, in which the applicant said that he did not commence working for his father until 2010 after he finished attending school. Whilst this inconsistency itself provided a rational basis for the Authority’s conclusion, the Authority also went on to explain why it did not accept the applicant’s evidence in this regard when it said:
I consider that if the authorities suspected his father of financially supporting the LTTE, they would have questioned him rather than the applicant and do not accept the applicant was detained because they suspected his father’s business was financially supporting the LTTE.
These findings were reasonably open on the evidence and the Authority’s reasoning does not disclose any jurisdictional error as alleged.
By ground 3(e), the applicant asserts that the Authority was unreasonable in not accepting the applicant’s claim ‘that his father paid for his release’ at paragraph [17]. It is submitted for the applicant that there was no contradiction between the applicant’s answer about the manner of his release being that he had to find his own way home on the one hand and his claim that his father paid for his release on the other. It is submitted that both of these things could be true at the same time. When read in context, it was open to the Authority to reject the applicant’s evidence, including on the basis that there was no reference to this claim in his arrival interview. Whilst reasonable minds might differ on the significance of this absence, that does not equate to illogicality or unreasonableness in the Authority’s findings.
By ground 3(f), the applicant claims that the Authority was unreasonable in rejecting the applicant’s claim that he and his ‘family were wanted by the authorities at that time because they were on a list’. It is submitted that this is an a priori rejection on a perfectly possible thing.[40] I do not agree. It was open to the Authority to reach the conclusions it did in paragraph [18] when it said:
Based on the inconsistencies highlighted above and the implausibility of his claims, I do not accept the applicant and his family were wanted by authorities at that time because they were on a list or following the discovery of any LTTE propaganda in the home or otherwise.
[40] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [38].
Whilst part of the Authority’s reasoning related to the fact that the applicant raised a claim to have been forced to hang LTTE paraphernalia in his home for the first time in the SHEV interview and that this was discovered by the authorities who raided their home after they were placed in the camp, the Authority also had regard to the fact that he provided minimal detail about his claim that his family was on a list of families who supported the LTTE. The Authority then highlights its concerns about the plausibility of the claims, in particular noting that there was no explanation as to why, if that material had been found in his home, it was only he and not his father who was harassed by the authorities. When read in their entirety, the Authority’s reasons for reaching this conclusion at paragraph [18] was reasonably open to it and no error arises.
By ground 3(g), the applicant takes issues with the Authority’s findings at paragraph [21] and says that it was unreasonable for the Authority not to accept that the applicant or his family knew S or financed the LTTE or that ‘the authorities suspected this, and as such I do not accept that he would have been questioned in relation to him’. For the same reasons given at paragraphs [117] to [121] above, this ground is not made out.
By ground 3(h), the applicant claims that the Authority was unreasonable in finding that ‘[i]f the applicant was genuinely wanted by authorities at this time I consider he would not have simply been released in this manner’ at paragraph [22]. It is submitted by the applicant that this is based on an assumption without evidence.[41] It is further submitted that it is common for erratic and cruel regimes to arrest, question and toss out a person whom they could always arrest or detain again, either out of sheer cruelty or because they may come across further information or revive an interest in a person. The applicant submits:
Release does not imply immunity from future harm, nor is it inconsistent with the test required to be applied – a ‘real chance’ of suffering relevant harm.[42]
[41] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [40].
[42] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [40].
Similarly, by ground 3(i), the applicant asserts that the Authority was unreasonable in its non-acceptance of the applicant’s claim that ‘he was beaten with the butt of a rifle and a hose filled with sand, had his hand broken, was forced to inhale poisonous fumes or had a toenail removed during this claimed incident’ at paragraph [23]. It is submitted that having regard to the fact that the applicant was 16 years old at the time of the claimed second detention in 2009, and in circumstances where the Authority accepted the first detention and questioning had occurred, the Authority was unreasonable in rejecting this aspect of the applicant’s claim.[43]
[43] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [41].
Further by ground 3(j), the applicant claims that the Authority was unreasonable in finding, at paragraph [25]:
… I do not accept the applicant was detained a second time in 2009. It follows that I do not accept he was wanted by the authorities at that time whether because of imputed LTTE-links or otherwise.
In relation to this ground, the applicant again asserts that release does not ‘imply immunity from future harm’.[44]
[44] Applicant’s Outline of Submissions filed on 2 February 2024 at paragraph [43].
By each of these grounds 3(h), (i) and (j), the applicant expresses a disagreement with the findings made by the Authority and invites the court to engage in impermissible merits review. The Authority’s reasoning is not unreasonable or illogical. Whilst a different decision-maker may have come to a different conclusion, that is not a sufficient basis upon which to challenge these findings.
It is important in considering whether the Authority’s reasons are unreasonable that they be read in their entirety and in context. When the Authority’ reasons are read in this way, there is a clear and logical reason for the Authority having come to the view to reject each of the applicant’s claims in grounds 3(h), (i) and (j). Paragraphs [21], [22] and [23] of the Authority’s reasons with which the applicant takes issue all appear under the heading ‘Second detention’. The findings made, and which are the subject of complaint, form part of the findings made by the Authority in determining whether it accepted or rejected that the applicant was detained a second time in 2009.
Relevantly, in rejecting this claim, the Authority had regard to a number of aspects of the applicant’s evidence. First, it noted at paragraph [20] an inconsistency as to when the second detention occurred, namely whether it occurred in November 2011 or in 2009.
At paragraph [21], the Authority summarised the applicant’s evidence about why he was interrogated rather than his father. It was open to the Authority not to accept this evidence.
At paragraph [22], the Authority notes the differences in the evidence given by the applicant about the mistreatment he was subjected to. Relevantly, the Authority records the applicant’s evidence on a range of issues relating to his alleged detention and release and it was open on the evidence before the Authority in response to questions about how he coped with the pain of having his toenail removed. The Authority also records the applicant’s evidence about how his father came to collect him and in this context expressed a likelihood of the applicant’s version of events being true.
At paragraph [23], the Authority discussed the applicant’s evidence about the abuse he was alleged to have been subjected to and the fact that there was no documentary evidence which supported his claims.
Relevantly, at paragraph [24], the Authority considered but rejected any suggestion that the applicant’s inability to recall events could be due to stress, anxiety or his young age. It is in the context of this analysis that the Authority expressed its conclusion, at paragraph [25]:
Given the significant inconsistencies and the difficulties the applicant had in providing more specific details about this claim when pressed by the delegate and the introduction of entirely new and serious claims in relation to his mistreatment at the SHEV interview stage I do not accept the applicant was detained a second time in 2009. It follows that I do not accept he was wanted by the authorities at that time whether because of imputed LTTE-links or otherwise.
(Emphasis added)
The Authority provided comprehensive and cogent reasons for this conclusion and the findings made were reasonably open on the evidence. No jurisdictional error is made out.
At ground 3(k), the applicant claims that there was no logically probative basis for the Tribunal to say that the applicant had, in his arrival interview, said ‘he was beaten with a shock absorber from the vehicle he was alleged to have burnt’ at paragraph [32].
The applicant, in response to a question in his arrival interview about whether he had been arrested or detained, said that he had been detained for two days.[45] In response to a question as to whether he had then been released, the applicant said:
So they didn’t show me to them as they had a case against me, so they beat me. They put a false case against me saying I had burnt a motorbike (two wheeler) so they took the shock absorber and hit me with it and took the water hose and filled it with gravel and beat me with it.
[45] Court book at page 11.
The Authority referred to this at paragraph [32] of its reasons and, in summarising what the applicant said in his arrival interview, stated:
… the applicant stated that during this incident he was rounded up with about five other people from his sports club … and he was beaten with a shock absorber from the vehicle he was alleged to have burnt and with a water hose filled with gravel.
It is clear from the balance of paragraph [32] that the Authority was setting out what it understood the applicant to have said in his arrival interview as well as apparent inconsistencies between the information provided in his arrival interview and the information provided by the applicant subsequently. At no stage did the Authority identify any relevant inconsistency in relation to whether the shock absorber that the applicant claimed to have been beaten with had come from the motorcycle he had allegedly stolen or otherwise.
This ground does not disclose any jurisdictional error for two reasons. First, the words attributed to the applicant in the arrival interview are open to interpretation in the manner in which the Authority understood them. The use of the words ‘the shock absorber’ immediately after the reference to the stolen motorcycle, is open to be read in the manner understood by the Authority. But in any event, and more importantly, in light of the detailed and cogent reasons given by the Authority for its conclusions at paragraph [37], any inaccuracy in summarising what the applicant said in his arrival interview does not disclose any jurisdictional error.
Grounds 3(l) and (m) essentially rely upon the same arguments as those set out in ground 2. For the reasons set out above in relation to ground 2, no jurisdictional error is made out.
Similarly, for reasons given in relation to ground 3(k), (l) and (m), the alleged error identified at ground 3(n) is also not made out. The reasoning at paragraph [37] of the Authority’s reasons was open on the evidence before it.
By ground 3(o), the applicant claims that the Authority erred in unreasonably rejecting the applicant’s claim that he had been sent a letter directing him to attend ‘fourth floor of the CID’ at paragraph [39]. The Authority did refer to the fact that this claim was only raised for the first time at his SHEV interview. Relevantly, however, central to the Authority’s rejection of that claim was the fact that although he had provided a host of other documents, the applicant did not provide a copy of the letter that he says had been delivered to his family home requiring him to attend the fourth floor of the CID. The Authority rejected this claim for a range of reasons, including the fact that the letter had not been produced, that the claim was made late and the fact that, for other reasons given elsewhere in its decision, the Authority was not satisfied that the applicant was wanted by the authorities at that time. The Authority provided cogent and detailed reasons and came to findings which were reasonably open. No jurisdictional error arises. Ultimately, this aspect of ground 3, like many others, invites the court to engage in impermissible merits review.
By ground 3(p), the applicant asserts that in light of certain findings made by the Authority, including that the applicant might be detained if he were to return to Sri Lanka and imprisoned for a short period of time, and in light of the country information before the Authority about a history and culture of torture by the police and other agencies, and the risk of harm to those who had even a tenuous link to the LTTE, that the Authority erred in refusing to accept that the there was a real chance the Applicant may suffer serious or significant harm if he were to return to Sri Lanka.
This aspect of ground 3 does little more than invite the Court to engage in impermissible merits review. When the Authority’s reasons are considered in their entirety, the conclusions reached by the Authority have a cogent and probative basis. No jurisdictional error arises. Ultimately, it is for the Authority to weigh the evidence, including country information. The Authority did that and the conclusion that the applicant did not face a real chance of serious harm if returned to Sri Lanka was reasonably open to it.
For each of these reasons, ground 3 is not made out.
CONCLUSION
As none of the grounds of review have been made out, the application ought be dismissed with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 31 May 2024
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