GWC24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 821

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GWC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 821

File number:

SYG 2157 of 2024

Judgment of:

JUDGE LADHAMS

Date of judgment:

5 September 2024

Catchwords:

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority made jurisdictional errors in its consideration of whether the applicant would face a real chance of serious harm – whether the Authority failed to consider the applicant’s chance of harm in the reasonably foreseeable future – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 476, 477

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

MZYXR v Minister for Immigration and Citizenship (2013) 141 ALD 276; [2013] FCA 252

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

Division:

Division 2 General Federal Law

Number of paragraphs:

51

Date of hearing:

7 June 2024

Place:

Perth (via Microsoft Teams)

Counsel for the Applicant:

Mr B Zipser (direct access)

Counsel for the First Respondent:

Ms Q Q Ren

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

HWL Ebsworth Lawyers

ORDERS

SYG 2157 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GWC24

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	5 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LADHAMS:

INTRODUCTION

1. The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the matter was referred to the Immigration Assessment Authority (Authority), which affirmed the delegate’s decision. The matter is now before the Court for judicial review in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).

2. The applicant raises two grounds of application which allege that the Authority fell into jurisdictional error in relation to the way in which it addressed one of the applicant’s claims for protection and failed, in addressing whether the applicant faced a real chance of serious harm, to consider the position for the applicant in the reasonably foreseeable future.

3. For the reasons explained below, the applicant has not established that the Authority decision is affected by jurisdictional error and the application for judicial review is therefore dismissed.

   VISA APPLICATION AND ADMINISTRATIVE DECISIONS

4. The applicant entered Australia at Cocos Islands in October 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.

5. The applicant participated in an Irregular Maritime Arrival Entry Interview (entry interview) with an officer of the Minister’s Department on 28 January 2013.

6. On 1 August 2016 the applicant made an application for a protection visa. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application.

7. On 20 January 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.

8. On 17 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority for review pursuant to s 473CA of the Migration Act.

9. The Authority affirmed the delegate’s decision on 30 November 2017. Those parts of the Authority decision that are most relevant to the grounds raised in the application are discussed below in the consideration of the grounds.

   JUDICIAL REVIEW APPLICATION

10. The applicant filed his application for judicial review in this Court on 15 December 2017. The application was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.

11. The applicant relies on a further amended application dated 10 May 2024 which contains the following grounds of application (reproduced without alteration):

    1.The Immigration Assessment Authority (“the IAA”) accepted that in April 2010 the applicant was harassed and robbed because he was a wealthy and successful businessman: at [19]. The applicant continued to be a successful businessman when he departed Sri Lanka in 2012 and claimed, in his protection visa application, a fear of further harassment and robbery because of this status if required to return to Sri Lanka. The IAA found at [36] that “overall crime rates remain steady across Sri Lanka”. If crime rates have remained steady across Sri Lanka between 2010 and the present, a question is whether the applicant faces a real chance of further harassment and robbery because of his wealth (“the Question”). The IAA did not deal or properly deal with this question. Specifically:

    (a)The IAA, in considering the Refugees Convention limb of the applicant’s protection visa application, found at [48] that “While I accept he was the victim of a robbery in the past, I am not satisfied he faces a real chance of harm because of his status as a wealthy and successful goldsmith.” However, the reasoning process leading to this finding does not deal with the Question.

    (b)The IAA, in considering the complementary protection limb of the applicant’s protection visa application, found at [63] “For the same reasons, I also find there is not a real risk he will suffer significant harm.” Again, the reasoning process leading to this finding does not deal with the Question.

    In the circumstances, the IAA failed to deal with an integer of the applicant’s claims, which is a jurisdictional error.

    2.The IAA, in finding at [48] that it was not satisfied that the applicant faced a real chance of harm on return to Sri Lanka, did not consider the position for the applicant into the reasonably foreseeable future. This is a jurisdictional error.

12. While ground 1 as pleaded is an assertion that the Authority failed to deal with an integer of the applicant’s claims, this is not the way it was pressed in the applicant’s submissions. Instead, the applicant provided the following explanation of the error asserted by ground 1 in his submissions:

    The IAA’s error can be characterised in one or more of the following ways:

    a)        The IAA misapplied the real chance test.

    b)The IAA’s reasoning process was irrational or illogical and therefore legally unreasonable.

    c)The IAA did not give genuine and realistic consideration to the combination of its finding concerning a past event, the principle that “what has occurred in the past is likely to be the most reliable guide as to what will happen in the future” (Minister v Guo (1997) 191 CLR 559 at 575), and the country information accepted by the IAA about steady crime rates.

13. The evidence before the Court comprises a court book filed on behalf of the Minister on 25 May 2018 and an affidavit of Sophia Russo filed on behalf of the Minister on 25 May 2024, annexing a copy of country information referred to in the Authority decision.

    GROUND 1

14. By ground 1, the applicant asserts that the Authority made jurisdictional errors in its consideration of whether the applicant would face a real chance of serious harm as a wealthy and successful businessman, when considered together with his profile as a supporter of the Tamil National Alliance (TNA) and as a Tamil.

    The applicant’s claims for protection

15. Before turning to the Authority’s reasoning, it is convenient to identify the way in which the applicant articulated his claims relevant to this ground.

16. The relevant claim was first raised in the applicant’s entry interview, during which he said:

    The TMVP they threatened me over the phone asking me why I worked for the TNA and also they started to come to my home and threaten me.

    …

    Initially they threatened me over the phone. On the 08/04/2010 the election happened and then on …/04/2010 they came to my home and they beat me and stole all of my gold jewelry.

17. In the statement provided with his visa application, the applicant claimed:

    8.On about … April 2010, while I was working for the Tamil National Alliance (“TNA”) and other voluntary organizations, I was harassed by an ex-LTTE military group (“TMVP”) that has now joined the Sri Lankan Army (“SLA”). I was almost arrested but the other villagers and my relatives shouted angrily at them and they left me alone.

    9.The reason for my harassment as I was told by the TMPV, was because I was working too closely with the TNA and my alleged association with the LTTE, and that I would face serious consequences if I were to continue working for them (the TNA).

    10.For the next year or so, I was constantly harassed by the SLA and they would interrogate me as to whether I was financially supporting the LTTE. That was because my goldsmith business was doing well and I was also collecting money for various welfare groups in my village. The SLA thought the money I collected was going to fund the LTTE but it was not true. During the harassments throughout the year up until the end of 2010, the SLA would regularly confiscate my machinery and valuables because they suspected I was involved with the LTTE. An example of this is on … April 2010 they came to my home and they beat me and stole all of my gold jewellery.

18. In a submission provided to the Department following the applicant’s protection visa interview, the applicant claimed that he was arrested and beaten by the Criminal Investigation Department (CID) as he was suspected to be funding activities of the Liberation Tigers of Tamil Eelam (LTTE) through his gold jeweller business and money collected from fundraising efforts for children with special needs. The applicant asserted that his feared persecutors were the Sri Lankan Army (SLA), the Tamil Makkal Viduthalai Pulikal (TMVP), the CID, the Sinhalese community and other Sri Lankan government authorities and para-military groups active in Sri Lanka.

19. Both parties emphasised in their submissions to the Court, and I accept, that the applicant’s claims for protection based on the incident of April 2010 were not advanced solely on the basis that he was a wealthy goldsmith, but included his profile as a person who supported the TNA.

    The Authority’s reasons

20. The Authority accepted at [15] of its reasons that ‘the applicant worked as a jeweller in Sri Lanka, and that his business was successful.’

21. The Authority said at [18] and [19] of its reasons (emphasis added, footnote omitted):

    18.When the delegate asked the applicant which issue caused him to stop publicly working for the TNA, he referred to his written claim that on … April 2010 unidentified persons, possibly the TMVP, stole all his gold jewellery and tried to abduct him, but bystanders prevented them. The applicant further claimed to the delegate that prior to this incident he had been putting up pro-TNA posters on behalf of the TNA candidate … for an election on 8 April 2010…

    19.Country information before the delegate indicates that in the immediate post war period there were high rates of abductions and murders in the Eastern Province. The TMVP, and its rival the Karuna Group, engaged in extortion and abductions; at times with the support and knowledge of the Sri Lankan authorities, but also for their own criminal purposes. I consider it plausible that unidentified persons, possibly the TMVP, may have been harassing the applicant during April 2010, and then robbed and attempted to abduct him because he was a wealthy businessman who collected money for local charities and provided low level support, but public, support to the TNA. I consider it plausible these people may have accused the applicant of being an LTTE supporter; however on the evidence I am not satisfied that they were acting on the authorities’ orders when they targeted the applicant in this way.

22. At [30] of its reasons, the Authority referred to a letter that the applicant provided from the president of a trustee board of a temple and noted that the letter surmised that due to the applicant’s reputation as a skilled jeweller, unknown armed persons started threatening and harassing him, forcing him to leave Sri Lanka. The Authority then said:

    I have accepted the applicant was a successful jeweller and in 2010 unknown persons, possibly the TMVP, had harassed him and then robbed, assaulted and attempted to abduct him. However I am not satisfied he was of adverse interest to the Sri Lankan authorities, or anyone else, at the time of his October 2012 departure from Sri Lanka, and for this reason place little weight on the letter’s assertion to the contrary.

23. At [34] of its reasons, the Authority did not accept that the Sri Lankan authorities were involved in the robbery, assault and attempted abduction of the applicant in 2010, or that until the end of 2010 the SLA would harass him and regularly confiscate his machinery, valuables and tools and assault him.

24. The Authority then said at [36] (footnotes omitted):

    While I have accepted that the unknown persons, possibly from the TMVP, assaulted, robbed and attempted to abduct the applicant in 2010, the country information before me indicates that the security situation has greatly improved in Sri Lanka - paramilitaries are no longer operational in Sri Lanka, and abductions have virtually ceased. In October 2015, the former head of TMVP, Pillayan, was arrested for his suspected involvement in the murder of an MP, and in 2016 the former head of the Karuna Group, Karuna Amman, was arrested on fraud charges; indicating such figures no longer have impunity for their actions or continue to enjoy a close relationship with the Sri Lankan authorities. Overall, crime rates remain steady across Sri Lanka and are highest in Colombo District, and higher in the Western and Northern Provinces.

25. In the subsequent paragraphs, the Authority made additional findings that are relevant to the consideration of this ground, including that, since the applicant’s departure from Sri Lanka, the TNA has become increasingly accepted as a player in the Sri Lankan political process (at [44]) and that country information before the Authority indicates that the overall situation for Tamils in Sri Lanka has improved considerably since 2009 (at [47]).

26. The Authority then said at [48] (emphasis added):

    Based on the applicant’s personal circumstances, and the greatly improved country information, I am not satisfied that he faces a real chance of harm as a young Hindu Tamil male from the east, with his familial LTTE links and community involvement. Given the TNA’s current status as a mainstream party, I am also not satisfied the applicant faces harm because of his prior support or membership of the TNA, or any continuing such involvement should he return to Sri Lanka. While I accept he was the victim of robbery in the past, I am also not satisfied he faces a real chance of harm because of his status as a wealthy and successful goldsmith.

27. In considering whether the applicant met the complementary protection criterion, the Authority accepted that the applicant was a wealthy and respected goldsmith who was involved in community affairs, and that in 2010 he was assaulted, robbed and almost abducted, possibly by the TMVP. The Authority noted that it had not accepted that the applicant, a young Hindu Tamil male from the east, with his experiences and connections, returning after having sought asylum in Australia, would face a real chance of harm upon return. For the same reasons, the Authority found that there was not a real risk he would suffer significant harm.

    The country information relied on by the Authority

28. The Authority referred to various sources of country information throughout its reasons. The Minister, in defending this ground, has referred expressly to a report prepared by the Department of Foreign Affairs and Trade and published on 24 January 2017, ‘DFAT Country Information Report on Sri Lanka’ (DFAT report) which was one of the reports cited in support of the findings at [36] of the Authority’s reasons. In its reasons, the Authority did not identify the paragraph numbers of the DFAT report that support the propositions for which the report was cited. However, the Minister has identified certain paragraphs of the DFAT report that he considers were relied on by the Authority.

29. In relation to the general security situation, the DFAT report states at [2.37]-[2.38] (emphasis added):

    2.37Since the conflict ended in May 2009, the security situation in Sri Lanka has greatly improved. The Sri Lankan government–through its military, intelligence and police–exercises effective control over the entire country.

    2.38Crime rates across Sri Lanka vary, but are highest in Colombo District and tend to be higher in the Western Province and the Northern Province. The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries–UNODC estimated a murder rate of 2.9 per 100,000 in 2013. The rates of many other serious crimes, including assault and rape have either remained steady or increased slightly. DFAT is aware of increased reports of gender-based violence (GBV) in the north and east and understands they have not been met with an effective response.

30. The DFAT report [4.1] (emphasis added):

    The report of the UN’s Office of the High Commissioner for Human Rights investigation into Sri Lanka (which covered the period 2002-2011) found that incidents of extra-judicial killings, disappearances and kidnappings for ransom occurred frequently in Sri Lanka during the civil conflict, particularly in the north and east. These were largely attributed to the Sri Lankan security forces, the LTTE and paramilitary groups. Some victims were also killed or abducted in relation to business or personal disputes. DFAT assesses that the number of incidents of extra-judicial killing, disappearances and abductions for ransom, including incidents of violence involving former LTTE members, has significantly reduced since the end of the conflict.

    Do the Authority’s reasons disclose jurisdictional error?

31. The applicant’s main complaint in relation to the Authority’s reasoning was that, if the applicant experienced harm in April 2010 as a result of his profile and crime rates remained steady across Sri Lanka between 2010 and November 2017, it is not clear why the applicant did not face a real chance of harm in November 2017. The applicant submitted that the Authority had not explained how, given the country information it accepted at [36], the applicant did not face a real chance of harm.

32. In his oral submissions, Counsel for the applicant acknowledged that a mere failure to give more detailed reasons does not, by itself, amount to jurisdictional error. Counsel for the applicant submitted that if the Court accepts that the Authority has not explained in a satisfactory way how it came to the finding at the last sentence of [48], then the Court could interpret that error as the Authority misapplying the real chance test or by engaging in a reasoning process that is irrational. Alternatively, the Court could find that the Authority did not give genuine and realistic consideration to the combination of its findings concerning a past event.

1. In my view, the Authority’s reasoning does not disclose jurisdictional error. To explain why that is the case, it is convenient to address the possible characterisations of the alleged error advanced by the applicant.

2. I start with the third characterisation of the alleged error, namely, that the Authority did not give genuine and realistic consideration to the combination of its finding concerning a past event, the principle that what occurred in the past is likely to be the most reliable guide as to what will happen in the future and the country information accepted by the Authority about steady crime rates.

3. It is evident from the Authority’s reasons that the Authority understood that the applicant claimed that the perpetrators of the assault, robbery and attempted abduction in 2010 were members of the TMVP and that the applicant claimed to have been targeted as a result of his support for the TNA. To this end, I am satisfied that the Authority read, identified, understood and evaluated the applicant’s claims: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at [24]. While the last sentence of [48] of the Authority’s reasons, when read in isolation, may appear to relate only to the risk of harm that the applicant may face as a wealthy businessman, when the Authority’s reasons are read as a whole, as they must be, it is apparent that the Authority addressed each aspect of the applicant’s claims relating to the incident in 2010 and the chance of the applicant again facing similar harm if he returns to Sri Lanka.

4. The Authority accepted that the alleged perpetrators may have been the TMVP, noting the TMVP engaged in extortion and abductions at the relevant time. In assessing the chance of the applicant facing harm in the future, the Authority had regard to country information to the effect that paramilitaries were no longer operational and that abductions had virtually ceased.

5. In assessing the chance that the applicant may face like harm in the future, the Authority also at [48] expressed that it was not satisfied that the applicant would face a real chance of serious harm on account of his TNA support. It can thus be seen that in assessing the risk of future harm the Authority effectively found that the applicant no longer faced a real chance of serious harm from the group that he claimed had targeted him in the past or for the political reason he claimed to have been previously targeted. The Authority also made findings that the applicant did not have a profile that would put him at risk of harm as a perceived LTTE supporter and found that he was not of interest to the authorities. When the Authority’s reasons are read as a whole, it is apparent that the Authority considered the whole of the applicant’s profile and not just whether he would face a real chance of harm as a wealthy businessman.

6. The Authority’s reasons also explain why, notwithstanding its acceptance that the applicant had been harmed in the past, it was not satisfied he would continue to have a well-founded fear of persecution. There was evidence before the Authority to support its findings in relation to the reduced paramilitary role of the TMVP, and the applicant does not cavil with the Authority’s findings regarding the increased political acceptance of the TNA and the reduced risk of persons in the applicant’s position being imputed with an LTTE profile. These reasons all explain why the Authority was not satisfied that the past harm suffered by the applicant was an accurate indication of the ongoing chance of harm.

7. In relation to country information, I accept the Minister’s submission that information in the DFAT report at [4.1] regarding the decrease in the number of incidents of extra-judicial killings, disappearances and abductions for ransom provided an evidentiary basis for the Authority’s finding at [36] that the security situation had greatly improved in Sri Lanka since the end of the conflict, in circumstances where that paragraph was addressing the risk of harm to the applicant from the TMVP. I accept that the reference to the crime rate otherwise being steady in the DFAT report was in relation to other serious crime including assault and rape. In the context of the Authority’s overall findings on the evidence before it, including other aspects of the country information that showed an improved security situation in Sri Lanka, particularly in relation to the paramilitary groups, it was open to the Authority to make the findings that it did, including at [48].

8. The Authority’s finding that the applicant did not face a real chance of serious harm on account of being a wealthy business owner was not irrational or illogical taking into account the evidence before the Authority. While there was information before the Authority that the crime rate for some types of offences had remained steady, there was also information that showed a significant improvement in the situation that was more relevant to the specific claims advanced by the applicant. A logical and rational decision-maker could have reached the same decision as the Authority on the material before it: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131], [135].

9. There is also no reason for finding that the Authority misapplied the real chance test. There is nothing in the Authority’s reasons to suggest that it misunderstood this test in any way. The only thing identified by the applicant is the country information that crime rates had remained steady, and I have already found that the Authority’s finding that the applicant did not face a real chance of facing the same kind of harm he faced during the incident in 2010 was open to it taking into account the whole of the material before it.

10. Ground 1 does not establish jurisdictional error.

    GROUND 2

11. Ground 2 also focuses on [48] of the Authority’s reasons. By this ground the applicant asserts that the Authority failed to consider the position for him in the reasonably foreseeable future.

12. There is no dispute between the parties that, in assessing whether the applicant had a well-founded fear of persecution, for the purposes of assessing whether he met the refugee criterion in s 36(2)(a) of the Migration Act, the Authority was required to consider the chance of harm at the time of its decision and in the reasonably foreseeable future: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 279.

13. The applicant submitted that the evidence before the Authority of the improved situation in Sri Lanka shows that there were changes and fluctuations in the political situation. The Authority took into account improvements in the country information and, according to the applicant, it is not apparent that the Authority assessed his situation into the reasonably foreseeable future. The applicant accepted that it was not necessary for the Authority to expressly use the words ‘reasonably foreseeable future’ but submitted that the Court should find from the Authority’s reasons that it did not assess the situation in the reasonably foreseeable future.

14. The Minister drew attention to the Authority’s use of the present future tense ‘faces’ at [48] of its reasons and suggested that this shows that the Authority was considering the situation for the applicant into the reasonably foreseeable future and applying the correct forward-looking test. There is some force in this submission although it is not determinative and I also acknowledge the applicant’s submission that the term ‘faces’ can be used to denote present tense. I also observe that the Minister referred to paragraphs within the Authority’s consideration of whether the applicant met the complementary protection criterion to support his argument that the Authority considered the reasonably foreseeable future. I do not place any weight on these paragraphs given that I understand this ground to be directed to the Authority’s consideration of the refugee criterion, rather than the complementary protection criterion.

15. That leaves a situation where there is nothing in the Authority’s reasons that expressly states that the Authority was considering the reasonably foreseeable future, but where the applicant correctly acknowledges that the Authority did not need to use those express words, and where there is nothing in the Authority’s reasons to indicate that it did not apply the forward-looking test.

16. I am not satisfied that the ground is established and I do not find that the applicant has discharged his evidentiary onus in relation to this ground. The main factor identified by the applicant is the Authority’s reliance on improvements in the country information. This is not the same as fluctuations in country information or a potentially deteriorating situation. The country information before the Authority showed improvements in the general security situation and the situation for Tamils since the end of the civil war in 2009. It was open to the Authority to take this into account and doing so does not indicate that the Authority failed to apply the forward-looking test. Further, I acknowledge the Minister’s submission and accept that there is nothing identified in the country information in this case that would indicate any likely change or deterioration in the circumstances in Sri Lanka in the reasonably foreseeable future. In this way, the case can be distinguished from MZYXR v Minister for Immigration and Citizenship (2013) 141 ALD 276; [2013] FCA 252, in which the Federal Court found that the Tribunal did not apply the forward-looking test in circumstances where there was country information before the Tribunal, which it did not expressly address, relating to uncertainties in the conditions of Hazaras in Afghanistan.

17. On a fair reading of the Authority’s reasons as a whole, there is nothing to suggest that the Authority did not apply a forward-looking test and assess whether the applicant would face a real chance of serious harm in the reasonably foreseeable future.

18. Ground 2 is not established.

    CONCLUSION

19. The applicant has not established that the Authority decision is affected by jurisdictional error. In these circumstances the application for judicial review must be dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       5 September 2024