Federal Court of Australia

AYC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1502

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    Appeal dismissed.

3.    The appellant pay the first respondent's costs to be assessed by a registrar of this Court if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    This is an appeal from a decision of the (former) Federal Circuit Court of Australia (FCCA). The FCCA dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the responsible Minister to refuse to grant the appellant a protection visa.

2    For the reasons set out below, the appeal should be dismissed.

Background

3    The appellant is a national of Sri Lanka of Tamil ethnicity. He was born in Jaffna, in the Northern Province. When he was around 6 months old, he and his family fled to India, where he was raised and educated in and around Mandapam Refugee Camp. His status as a refugee does not provide a right of legal re-entry to India.

4    On 5 November 2012 the appellant arrived in Australia by boat without a visa. The nature of that arrival means that he was, and is, an 'unauthorised maritime arrival' as defined in s 5AA of the Migration Act 1958 (Cth).

5    On 11 May 2016 the appellant applied for a protection visa.

6    The appellant's claims that formed the basis of his protection claim are that during the Sri Lankan civil war, his grandmother and cousin were killed, and his uncle disappeared, despite there being no known connections between the appellant's family and the Liberation Tigers of Tamil Eelam (LTTE). The appellant fears harm from Sri Lankan authorities due to his Tamil ethnicity, and as a consequence of his departure from Sri Lanka in contravention of the Immigrants and Emigrants Act 1949 (Sri Lanka). The appellant also claims that re-establishing himself in Sri Lanka would present difficult challenges, including because he has no family remaining there.

7    On 26 April 2017 the delegate refused to grant the visa on the basis that the appellant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) and s 36(2)(aa) of the Migration Act. The delegate's decision was then referred to the Authority for 'fast-track' review under Part 7AA of the Migration Act. On 14 February 2018 the Authority affirmed the delegate's decision.

8    On 16 November 2018 the FCCA remitted the matter to the Authority by consent on the basis of a concession by the Minister that the Authority had not considered the appellant's illegal departure from Sri Lanka against the complementary protection criterion in s 36(2)(aa) of the Migration Act. On 29 January 2019 a differently constituted Authority affirmed the decision not to grant the protection visa (Authority's decision).

9    On 8 February 2019 the appellant applied to the FCCA for judicial review of the Authority's decision. At the FCCA hearing, the primary judge allowed the appellant to rely on an amended application filed 15 May 2020. Having regard to oral submissions at the hearing, the primary judge allowed the appellant to rely on a further amended application filed on 25 June 2020. On 28 July 2020 the FCCA dismissed the further amended application: AYC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 1637 (PJ).

10    On 17 August 2020 the appellant filed a notice of appeal to this Court. As the appellant is self-represented, the matter was held in abeyance while in-person hearings were suspended during the COVID-19 pandemic.

DFAT reports and new information under s 473DD

11    The Authority was provided with the information before the delegate by the Secretary, in accordance with s 473CB of the Migration Act. Further, in accordance with s 473DD, the Authority admitted for its consideration new submissions provided by the appellant. In summary, those submissions addressed the treatment of people who are detected on re-entry to Sri Lanka as having departed illegally (including the alleged use of torture); and the possible increased risk of harm to Tamils if former President Rajapaksa were to return to government.

12    The Authority had regard to country information before it, including a report on Sri Lanka from the Department of Foreign Affairs and Trade (DFAT) dated 24 January 2017 (2017 DFAT Report). However, it also obtained the latest report on Sri Lanka from DFAT dated 23 May 2018 (2018 DFAT Report).

13    Of particular relevance to this appeal are extracts from those respective reports that refer to torture. It is appropriate to reproduce parts of those reports.

14    The 2017 DFAT Report included the following:

TORTURE

…

4.12    A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).

4.13    … DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.

4.14    Tamils faced a higher risk of torture during the conflict. The September 2015 report of the UN's Office of the High Commissioner for Human Rights investigation into Sri Lanka found that 'victims of conflict-related torture perpetrated by Government forces… were generally Tamil, often arrested and detained in Government controlled areas… under the PTA and the Emergency Regulations'.

4.15    DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.

4.16    In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed 'torture to be of routine nature… practiced all over the country, mainly in relation to police detentions' and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.

4.17    Evidence obtained through torture is generally inadmissible in courts in Sri Lanka. However, for suspects held under the Prevention of Terrorism Act, all confessions obtained by officers at or above the rank of Assistant Superintendent of Police are admissible in court. Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights. Disciplinary action can be taken when complaints are made against the police or prison officers, but there have been few recent examples of this.

4.18    DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.

4.19    DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.

4.20    Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.

Torture and mistreatment of returnees

4.21    DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that man allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.

4.22    Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations or torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.

15    The 2018 DFAT Report includes a statement to the effect that it is an updated country information report that replaces the 2017 DFAT Report.

16    In a section titled 'Torture', the 2018 DFAT Report discusses reports of torture by the military, intelligence agencies and police, as an endemic and routine component of arrest, detention and interrogation. Much of it is in similar terms to the 2017 DFAT Report. However, in contrast it does not have a specific section dealing with 'torture and mistreatment of returnees'. However, the section on torture concludes:

4.19    DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the civil conflict and is no longer state-sponsored. Because few reports of torture are verified, it is difficult to determine the prevalence of torture but DFAT assesses that, irrespective of religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture.

Authority's decision

Reasons

17    The Authority referred to the nature of the appellant's claims, and his submission which referred to reports of the ongoing use of torture in Sri Lanka.

18    It found the appellant to be a credible witness based on the materials and accepted his evidence, including his claims about his family's whereabouts and the events that involved his relatives in Sri Lanka.

19    The Authority relied on country information to find that Tamil ethnicity alone was insufficient to warrant protection, even under the Rajapaksa government.

20    It found that while there have been reports of some returnees being detained and harmed on return, these largely related to persons who had an involvement with the LTTE. DFAT information did not suggest that returnees were imputed as LTTE by reason of their family's long residence in India.

21    The Authority found that the appellant had no profile in Sri Lanka that would be of interest to authorities, given that his family members had not been involved in the LTTE and that he was absent from Sri Lanka throughout the civil war. The Authority found the chance of the appellant being perceived as a person with links to the LTTE, or otherwise thought to be a person of any interest to authorities and harmed for such reasons, to be remote. The evidence did not suggest that the appellant's involuntary return as a failed asylum seeker would be viewed adversely. It accepted he may be subject to some low level monitoring, but was not satisfied this would amount to serious harm.

22    In relation to the appellant's ability to reintegrate into Sri Lanka, the Authority found that:

24.    [The appellant] has referred to his lack of family in Sri Lanka and I accept that his immediate family are no longer there. On his evidence at the protection visa interview, it seems that his mother has some contact with at least one cousin who was able to obtain and provide documents for [the appellant], and so I do not accept that he would be entirely without any family connection. …

23    In relation to possible mistreatment as a consequence of the appellant's illegal departure from Sri Lanka, the Authority found as follows:

25.    … Information from DFAT [DFAT 2017 and 2018 reports] indicates that unlawful departure from Sri Lanka is an offence under Sri Lankan immigration law. While the law allows for imprisonment, the information indicates this sentence has never been imposed on a person who was merely a passenger on a people smuggling boat. Persons who departed illegally are commonly imposed with a fine … The information indicates that returnees suspected of unlawful departure undergo investigation at the airport and are then transferred to the Magistrates Court. Some may spend a number of days in custody pending their appearance before a magistrate or granting of bail, which can be granted on personal surety although in some cases a relative may be required to act as guarantor. The information also indicates that returnees who have pled not guilty to illegal departure may need to attend court or report to police on further occasions, which can involve travel and legal costs. DFAT has advised that the same processes apply to returnees who travelled first to India and then on to a third country.

26.    I accept that the applicant will undergo an investigation at the airport on return, and will be identified as a person who departed Sri Lanka illegally. The applicant is in possession of documents including his birth certificate and, through his mother, would be able to identify at least one relative in Sri Lanka and I find that the applicant would be able to establish his identity should that be required. …

27.    The applicant was less than a year old at the time of his departure, and I have some doubt that the immigration laws would be applied to a person who departed Sri Lanka close to 30 years ago as an infant, but I cannot be satisfied of that so will proceed on the basis that the applicant will be subject to charges for his unlawful departure. It would be apparent from his age at the time that he was merely a passenger rather than having any sort of involvement with people smuggling and I find that the applicant will be charged with an offence and ultimately fined. Given his age at the time of the offence, any fine imposed could be expected to be at the lower end of the scale. I accept on the country information that it is possible he may also be detained pending bail, but that would only be in the event that a magistrate was not available to hear the case such as due to a weekend or public holiday, or he pleaded not guilty and needed to wait for a relative to come to court to act as guarantor rather than having bail granted on personal surety. I am not satisfied on the evidence that there is any more than a remote chance of the applicant being detained for more than a brief period, of several days at most.

28.    … The submissions refer to an assessment of a UK Tribunal that if a person is detained by Sri Lankan security services, there remains a real risk of ill treatment or harm requiring international protection, and UN reports referring to the continued use of torture in investigations, arrest and detention. … On this basis, the applicant is said to be at risk of torture while subject to criminal investigation. While I do not dispute the reports regarding the continued use of torture, I note that specifically regarding the situation for returnees suspected of offences under Sri Lanka's immigration laws, DFAT has assessed that the risk of torture or mistreatment for the majority of returnees is low. DFAT has also said that all returnees are subject to the same procedures, regardless of ethnicity or religion. It appears that the investigative stage for these offences is brief and were it the case that the applicant were to be briefly held on remand, this would be for the purpose of awaiting bail rather than continued investigation. The applicant does not have an adverse profile and I am not satisfied that the chance of him being mistreated during investigation or while detained is anything beyond remote.

29.    Although the country information indicates that conditions in Sri Lankan prisons (if that is where the applicant were to be detained) are poor, … on my findings the applicant will only be detained for, at most, several days. The fine with which the applicant will be imposed is payable by instalment. I have considered the fine, further costs that may be associated with ongoing court appearances or reporting should the applicant elect to plead not guilty, and the brief period the applicant will spend in detention, but I am not satisfied that this amounts to serious harm either individually or cumulatively. I further find that the treatment arises from a nondiscriminatory application of Sri Lankan law, rather than being for one of the reasons in s.5J(1)(a) or involving systematic and discriminatory conduct as required by s.5J(4)(c).

(emphasis added, footnotes omitted)

24    The authority concluded that even considered cumulatively, the treatment the appellant may face on return did not amount to serious harm.

Authority's conclusion

25    The Authority concluded as to the appellant's refugee status:

31.    … Considering together the applicant's profile as a young Tamil male born in Jaffna, his past history and family connections, his illegal departure from Sri Lanka, long residence in India and the fact that some of his family members remain there, and his involuntary return to Sri Lanka as a failed asylum seeker from Australia, I am not satisfied there is a real chance of the applicant suffering any harm in the reasonably foreseeable future beyond the treatment identified above which I have found does not amount to serious harm. The applicant does not have a well-founded fear of persecution within the meaning of s.5J.

26    The Authority concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act, for the purpose of s 36(2)(a) of that Act (well founded fear of persecution).

27    In relation to the complementary protection provisions in s 36(2)(aa) (real risk of significant harm), the Authority concluded:

35.    I have accepted that the applicant may experience some monitoring and that he may face challenges reintegrating into Sri Lanka. I have also accepted that the applicant will be investigated, charged with illegal departure and may be fined, and that he may spend a brief period of time in custody in this process and have to return to court on future occasions, should he plead not guilty.

36.    I find that the treatment in respect of illegal departure arises from the enforcement of Sri Lankan law and does not involve the requisite intention to inflict pain or suffering or to cause humiliation required in the definitions. Further, considering the brevity of the detention the applicant will experience, even taking into account the conditions of Sri Lankan prisons, I am not satisfied that spending a number of days detained in such conditions, together with the fine he will be required to pay and associated costs of attending court or police, would involve the level of pain, suffering or humiliation described in the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

37.    I have also considered the low level monitoring and challenges in reintegrating that I have accepted the applicant may experience. However, I am not satisfied there is a real risk of this being at a level that would [be] reaching the relevant thresholds of pain, suffering or humiliation so as to amount to significant harm as defined, either individually or cumulatively with the treatment in respect of illegal departure considered above. Nor am I satisfied there is a real risk of the applicant being subjected to arbitrary deprivation of life or the death penalty.

38.    I have otherwise found there is not a real chance of the applicant being harmed in Sri Lanka. Real chance and real risk involve the same standard. Relying on the reasoning and country information I have set out above, I am similarly not satisfied there is a real risk of the applicant suffering significant harm in Sri Lanka.

(footnotes omitted)

28    Accordingly, the Authority affirmed the decision under review.

FCCA grounds of review and decision

29    Because the appellant in the hearing before me adopted the arguments pursued in the FCCA, I will reproduce the grounds of review particularised before the FCCA:

1.    The Immigration Assessment Authority (IAA) failed to consider an integer of the applicant's claims arising from the material, namely whether the applicant had a member of his family in Sri Lanka who would be prepared to act as a guarantor for his bail and come to collect him so he could be released.

Particulars

a.    The IAA accepted that the applicant would be arrested and charged with illegally departing Sri Lanka.

b.    The IAA had before it and referred to country information that the Sri Lankan authorities may require a relative to act as guarantor for the applicant's bail and for a relative to come to court to collect him.

c.    The information before the IAA was that the applicant's family had fled to India when the applicant was an infant, that his mother and sister will still in India, that his father was deceased, and that his other siblings were in Australia and France.

d.    The IAA failed to consider whether there was any member of the applicant's family who was willing and able to act as guarantor and to collect him from court to secure his release.

2.    Alternatively to ground 1, if the IAA is found to have made an implied finding that a family member in Sri Lanka would be willing and able to act as a guarantor for his bail and come to collect him so he could be released, there was no rationally probative evidence before the IAA to support such a finding.

Particulars

a.    The applicant repeats particulars (a) to (c) in ground 1.

b.    There was no rationally probative evidence before the IAA to support a finding that the applicant had a family member who would be willing and able to act as a guarantor for his bail and come to collect him so he could be released.

3.    The IAA erred in its construction of the 'real risk' test in the context of its consideration of the DFAT Country Information Report.

Particulars

a.    The IAA relied on an assessment in the DFAT Country Information Report on Sri Lanka dated 23 May 2018 ('DFAT Report') that 'the risk of torture or mistreatment for the majority of returnees is low' as the basis for a finding that the applicant did not face a real risk of significant harm in the form of torture.

b.    The IAA failed to have regard to the explanation of terms in the DFAT Report where 'low risk' is defined to mean 'DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern.'

c.    By equating the DFAT Report reference to 'low risk' to a finding that the applicant did not face a real risk of torture, the IAA erred in its construction of the real risk test required by s 36(2)(aa) of the Migration Act 1958 (Cth).

4.    The IAA failed to reach a state of satisfaction lawfully, in that it relied on outdated and superseded country information in the 2017 DFAT Report in preference to the current information in the 2018 DFAT Report without providing any justification for doing so.

30    The primary judge found that grounds 1 and 2 (as to the availability of a family member to act as guarantor on return) did not need to be resolved, because the Authority had found that any treatment as a returnee would not amount to serious or significant harm for the purposes of s 36(2)(a) and s 36(2)(aa) of the Migration Act (PJ [57]-[60]). The primary judge nonetheless found that the appellant had failed to overcome multiple contingent hypotheticals, similar to those identified in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (Beach, O'Callaghan and Anastassiou JJ).

31    For ease of reference I include the relevant paragraphs of the Full Court's reasons in DCP16:

[97]    Further, as to a family member acting as a guarantor, contrary to the appellant's submission the Authority did not make any assumption that a family member would act as guarantor. The country information was that the appellant may be required to have a family member act as guarantor and that is all the Authority said. The question of whether a family member would act as guarantor was not critical to the Authority's decision (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [79] per Robertson and Kerr JJ).

[98]    On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant's release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.

(original emphasis)

32    Returning to the present case, having referred to DCP16, the primary judge said:

[62]    In order for the issue raised by the applicant in these grounds to become material, several hurdles of improbability would need to be cleared:

a)    first, the applicant would have to be charged with an offence under the Sri Lankan Immigrants and Emigrants Act, that offence having been committed at the age of 1. Unless the offence is a strict liability offence, not requiring a mental element, that seems unlikely;

b)    secondly, the applicant would have to plead not guilty to the offence;

c)    thirdly, the magistrate dealing with the case would need to be unwilling to rely on the applicant's personal surety;

d)    fourthly, the magistrate would need to require the personal attendance of a family member to provide a guarantee;

e)    fifthly, the applicant's cousin who has previously assisted the applicant and his family with his asylum claim would have to be unwilling or unable to assist.

33    Ground 3, as to the 'real risk' test in the context of torture, related to the reasons of the Authority at para 28 (reproduced above at [23]), and is answered in part by ascertaining which DFAT report was relied upon for the conclusion in that paragraph. The finding was made in the context of its consideration of the appellant's illegal departure claim, and in particular his submission that he was at risk of torture while subject to criminal investigation. In dismissing ground 3, the primary judge found as follows:

[77]    … The applicant's submissions proceed on the basis that the evidence referred to by the Authority was the 2018 DFAT Report at [4.19]. It was not. Paragraphs [4.12]-[4.19] of the 2018 DFAT Report are not concerned with the torture of persons held in gaol or on remand because of illegal departure, which is what the Authority was addressing at [28]. The Authority, at [28], was referring to [section 4.22 of the 2017 DFAT Report], as cited at [30] by the first Authority for the same proposition, and cited by the Authority, relevantly, at [25]. …

[78]    Precisely what DFAT equated 'low' to be in the context of paragraph [4.19] of the 2018 DFAT Report ('a low risk of mistreatment that can amount to torture') was not directly relevant to the finding at [28]. That finding was not merely that there was a 'low' risk, but that the Authority was not satisfied that the chance of the applicant being mistreated during investigation or detention was 'anything beyond remote'.

…

[80]    Finally, the only possible context in which the applicant, on the facts as found by the Authority, could have been exposed to any risk of torture, was in relation to the applicant's illegal departure claim. That claim, as I have already found, was dealt with in two separate and independent ways in relation to both ss.36(2)(a) and 36(2)(aa) of the Migration Act. Ground 3 only attacks the reasoning to the effect that the treatment the applicant may experience in gaol on remand in relation to his illegal departure was not of sufficient gravity to amount to serious or significant harm. It does not attempt to impugn the alternative reasoning. Therefore, any error was not material.

(footnotes omitted)

34    I note that the reference at PJ [80] to the alternative reasoning is a reference to PJ [64]-[68]. In those paragraphs the primary judge referred to the Authority's assessment of the risk of torture specifically regarding the situation for returnees, and more generally.

35    Ground 4, as to the use of the earlier DFAT report, arose during oral submissions before the primary judge. The appellant contended that it was erroneous for the Authority to rely on the 2017 DFAT Report, given the 2018 DFAT Report was intended to replace and supersede it. The primary judge considered a line of authority to the effect that decision-makers fall into jurisdictional error if they do not have regard to the most recent country information, unless justified in doing so as part of a weighing process after considering all information available to them: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [74]; and BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [36].

36    The primary judge found that the choice and interpretation of country information was a matter for the Authority. The Authority had clearly considered the 2018 DFAT Report, because it was referred to throughout its reasons. In relation to the Authority's consideration of the 2017 DFAT Report, the primary judge held that:

[107]    It would be an error for the Authority to rely upon a superseded DFAT Report which was contradicted by a more recent Report, or even if the information in the superseded Report is rendered unreliable in a more general way by the more recent Report. Where, as here, however, the most recent Report is silent on the relevant issue, and that silence is not indicative of a change in circumstances, it is in my view open to the Authority to rely upon the superseded Report. The fact that the 2018 DFAT Report was described as replacing the 2017 DFAT Report is not in itself definitive, at least where the 2018 DFAT Report does not raise a question of doubt or uncertainty about information in the 2017 DFAT Report.

37    As none of the grounds of review were made out, the primary judge dismissed the application.

Appeal

38    The appellant was self-represented in the proceedings in this Court. The notice of appeal contains one ground of review, expressed in the following terms and without further particulars:

1.    The primary Judge didn't adequately examine the evidence that was placed and didn't exercise the Courts proper jurisdiction.

39    The appellant did not file written submissions. At the hearing, I drew the appellant's attention to the Minister's written submissions, which addressed the ground of appeal as a contention that the primary judge erred in failing to find jurisdictional error in relation to the four grounds of review raised before the FCCA. The appellant confirmed that he wished to proceed on that basis and rely on the same arguments as in the FCCA.

Appellant's submissions

40    During oral submissions, the appellant addressed the merits of his application for protection, reiterating his family history in the context of the Sri Lankan civil war and his lack of any real familial connection with Sri Lanka. The appellant also stated that he did not understand why he had been successful once before the FCCA, but was not successful the second time. It was understandable in his circumstances that the appellant was not able to develop his submissions in the context of the establishment of jurisdictional error. However, I have read the Authority's decision bearing that in mind, and note that the Minister's submissions properly pre-empted potential arguments that the appellant might raise, and the authorities that should be followed in assessing the four grounds.

Consideration

Principles applicable to review by primary judge

41    This Court (and the FCCA) generally has jurisdiction to review decisions made under the Migration Act only for jurisdictional error: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [29]-[35]. While it is 'not possible or desirable to mark the metes and bounds of jurisdictional error' (Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [71]), the Court will defer to the decision-maker in relation to any matters that fall within its area of decisional freedom, such as fact-finding and the weighing of evidence: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] (French CJ). In the context of the decision under review in this appeal, the selection of country information used to inform an Authority's findings, and the relative weight afforded to that country information, is a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].

42    Applying these principles to this matter, expressed generally I can discern no error in the review decision of the primary judge. The primary judge considered the appellant's arguments as presented in written and oral submissions prepared by his legal representatives, and the application of the legal authorities to which his Honour was taken. The primary judge's active consideration of the issues raised is evidenced by the discussion in the judgment of the leading cases on both the process faced by returnees in Sri Lanka; the use of DFAT reports in administrative decision-making; and their applicability to the decision of the Authority before the primary judge.

Grounds 1 and 2

43    I agree with the primary judge that the appellant has been unable to demonstrate how the contentions raised in grounds 1 and 2 were material to the decision (PJ [57]-[60]). The Authority found that the possible treatment awaiting the appellant on return to Sri Lanka, even where there may be no family member to act as guarantor for bail, would not amount to serious or significant harm so as to fall within s 36(2)(a) and s 36(2)(aa) of the Migration Act. Even if the Authority had committed the error alleged, either by failing to consider the availability of a family member or by making a positive finding that there was a family member available, such an error could not have affected the outcome of the Authority's findings and reasoning in relation to the nature of the harm the appellant claimed to face on his return to Sri Lanka.

44    The primary judge correctly referred to and followed the approach in DCP16.

Ground 3

45    The primary judge recognised (at PJ [77]), by acceptance of the Minister's submission, that an issue arose from the Authority's use of the expression 'low risk' in para 28 of its reasons. It must be recalled that its assessment was made in the context of the prospect of torture of returnees. I will repeat part of para 28 for convenience:

28.    … On this basis, the applicant is said to be at risk of torture while subject to criminal investigation. While I do not dispute the reports regarding the continued use of torture, I note that specifically regarding the situation for returnees suspected of offences under Sri Lanka's immigration laws, DFAT has assessed that the risk of torture or mistreatment for the majority of returnees is low … The applicant does not have an adverse profile and I am not satisfied that the chance of him being mistreated during investigation or while detained is anything beyond remote.

(emphasis added)

46    It is apparent from its wording that the Authority's reference to DFAT's assessment was to the DFAT 2017 Report. As the outcome to ground 4 indicates, it was not improper for the Authority to refer to the 2017 DFAT Report, despite there being the later 2018 DFAT Report.

47    The appellant's argument related to the application of s 36(2)(aa) and whether the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen's removal from Australia, there is a 'real risk' that the non-citizen will suffer significant harm. Under s 36(2)(a), when considering whether the applicant has a well-founded fear that the applicant will face persecution for a Convention reason if returned to the applicant's country of nationality, the question is one of a 'real chance'. It is well-recognised that the standard for those tests is the same: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242] (Lander and Gordon JJ).

48    The appellant appeared to assume and contend before the FCCA that the Authority applied a standard of whether there was a 'low risk' of torture by reference to a definition of those words in the 2018 DFAT Report. The definition of 'low risk' was that 'DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern'. According to the appellant, it followed that the Authority inferred there may be incidents. If so, according to his argument, it could not be said that there was no real risk of persecution or significant harm within the meaning of the provisions - a low risk was a real risk.

49    The appellant appears to have wrongly assumed that in using the word 'low' in para 28 to describe the risk, the Authority incorporated its meaning from the definition of 'low risk' provided by the 2018 DFAT Report. That does not follow. The Authority quite deliberately referred to the wording of the 2017 DFAT Report because it was particular to the position of returnees. There was no reason to incorporate the 2018 definition.

50    In any event, it is artificial to proceed on the basis that in para 28 the Authority was reaching a determinative conclusion on risk for the purpose of s 36(2)(a) or s 36(2)(aa) of the Migration Act. It is apparent that the Authority was considering the DFAT information on torture of returnees suspected of offences as part of its overall assessment of risk upon return.

51    The Authority went on to expressly find that it was not satisfied that there is a real chance of the appellant being harmed and having a well-founded fear of persecution in Sri Lanka (at para 31). It was similarly not satisfied that there is a real risk of the applicant suffering significant harm in Sri Lanka (at paras 37-38). It acknowledged that the tests involve the same standard.

52    The Authority's description of its assessment of the risk of torture of a returnee while being subject to investigation as 'low' must be viewed having regard to those overarching conclusions referred to in the preceding paragraph. It cannot reasonably be inferred that the Authority, having informed itself of the correct tests, had intended to lower the threshold and so expand the scope of the test by adopting the word 'low'.

53    Furthermore, even within para 28, the Authority did more than simply describe the risk of torture as low. It also described it as 'remote'. This reinforces my view that the Authority did not intend to propose any different test. Its description of a risk as 'remote' is consistent with measuring risk against the well-established standards involved in an assessment of a real risk or real chance of harm.

54    In those circumstances, the Authority did not fall into jurisdictional error as submitted in its assessment of the risk of torture to the appellant upon any return as a failed asylum seeker subject to criminal investigation in Sri Lanka. The primary judge was correct to reject ground 3 of the review.

55    As his Honour also acknowledged, the argument was raised with respect to the appellant's submission on torture while subject to criminal investigations as a returnee, and not more broadly.

Ground 4

56    The primary judge found that the Authority had turned to older information regarding the risk of mistreatment of returnees where the most recent material was silent on that issue. Two authorities were said to be relevant to the issue.

57    In BMP15, O'Callaghan J found that the Refugee Review Tribunal had erred by failing to take into account the most recent country information assessment prepared by the DFAT in relation to the availability of bail. In that case, a more recent DFAT report was available, superseded aspects of the earlier DFAT report, and was clearly relevant to the particular issue. The decision is accordingly distinguishable on its facts. It was also acknowledged in that decision that older material could be referred to if it was not wrong or contradicted more recent material (at [35]).

58    The Full Court's decision in MZYTS is also useful. It said the following about the use of older information which, as in this case, is more specific to the particular claim and circumstances:

[73]    Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)] 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person's fear of persecution for a Convention reason on return to her or his country of nationality is well founded.

[74]    That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant's circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

59    In the hearing before me, Counsel for the Minister also referred to a later judgment of this Court in FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 894.

60    In FFR19, the Court was asked to consider whether the Administrative Appeals Tribunal had committed jurisdictional error by not referring to an earlier DFAT report. The appellant in that case contended that the mere fact that the DFAT report had been updated did not mean that there is only one DFAT report that must be taken into account. It was argued that despite the issue of a 2016 DFAT report and a 2018 DFAT report, it was the 2013 DFAT report that contained information most relevant and thus most appropriate for assessing his claims. While ultimately finding that the 2013 DFAT report did not assist the appellant in demonstrating a risk of harm, Markovic J observed that:

[53]    … the Tribunal was required to take the 2018 DFAT Report into account. It did so …

[54]    That does not mean that the Tribunal could not … take other country information into account 'where relevant'. In BMP15 [at [35]], O'Callaghan J acknowledged that there was nothing wrong with the Tribunal doing so 'provided that older country information isn't flatly wrong' and does not '[contradict] more recent country information'. …

61    In the circumstances of this case, although the 2018 DFAT Report was said to supersede the earlier report, the information in the 2017 DFAT Report was 'the most up-to-date information' available to the Authority in relation to the mistreatment of returnees, as distinct from more general information regarding the prevalence of mistreatment and torture in Sri Lanka. The Authority was entitled to take it into account. It was not plainly wrong. It did not disclose inconsistency with the 2018 DFAT Report. It is apparent from its reasons that the Authority had regard to the 2018 DFAT Report more generally, and in fact obtained it for the purpose of the review.

62    The Authority did not reach a conclusion on the real risk assessment based only on the particular extract of the 2017 DFAT Report and the nature of treatment that might be received by a returnee suspected of offending. As discussed above, it also took into account its findings that the appellant had no relevant profile (see respective conclusions at [25] and [27] above). It is apparent that the Authority undertook the task required of it and explained its reasoning.

63    The ground of appeal cavils with the primary judge's findings relating to matters within the Authority's area of decisional freedom, including fact-finding and the weighing of country information. The appellant has not demonstrated error on the part of the Authority or the primary judge.

Disposition

64    It follows that the appellant has not established error on the part of the primary judge in dismissing the review application, and the appeal must be dismissed with costs.

Associate:

Dated:    1 December 2023