BJW17 v Minister for Immigration - [2018] FCCA 3572

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJW17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3572

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka on various bases – applicant’s fears found not to be well-founded – whether the Authority misapplied the real chance test or overlooked a claim considered – no jurisdictional error.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D

Migration Act 1958 (Cth), ss.5H, 5J, 36

Cases cited:

Abdul Raheem v Minister for Immigration [2001] FCA 940

Chan v Minister for Immigration (1989) 169 CLR 379

Cotterill v Minister for Immigration (2016) 330 ALR 617

Kalala v Minister for Immigration (2001) 114 FCR 212

Lafu v Minister for Immigration (2009) 112 ALD 1

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v Rajalingam (1999) 93 FCR 220

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Yusuf (2001) 206 CLR 323

VDAU v Minister for Immigration [2004] FCAFC 32

WAEE v Minister for Immigration (2004) 236 FCR 593

Applicant:

BJW17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 997 of 2017

Judgment of:

Judge Driver

Hearing date:

9 November 2018

Delivered at:

Sydney

Delivered on:

21 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Rasan T Selliah & Associates

Solicitors for the Respondents:

Mr A Moss of Clayton Utz

ORDERS

The application amended by leave granted on 9 November 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 997 of 2017

BJW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 March 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a 45-year-old Tamil male, and citizen of Sri Lanka. On 13 October 2012 the applicant arrived in Australian waters at Cocos (Keeling) Islands by boat as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 43, 81
On 31 December 2012 the applicant participated in an “entry interview”.[2] The entry interview record contains some of the applicant’s claims.[3]
[2] CB 1-16
[3] See CB 11
Between October 2012 and January 2013 the applicant was in detention centres, following which he was granted a temporary visa and released into the community on the Australian mainland.[4]
[4] CB 49
On 18 March 2016[5] the applicant lodged an application for a safe haven enterprise visa (SHEV).[6] The application included a typed statement by the applicant dated 14 March 2016 which set out his claims.[7]
[5] CB 64, 81
[6] CB 23-63
[7] CB 60-63
In that application, the applicant claims to fear that if he were to be returned to Sri Lanka, he will be subjected to serious harm, including death, from Sri Lanka's Criminal Investigation Department (CID), the Sri Lankan Police, and other government agencies, as well as paramilitaries, due to:
a)his previous assistance to the Liberation Tigers of Tamil Eelam (LTTE);
b)an imputed pro-LTTE political opinion due to his cousin's involvement with the LTTE;
c)his status as a Tamil male from Sri Lanka's Northern Province; and
d)his status as a failed asylum seeker who departed Sri Lanka illegally.[8]
[8] See the summaries of the applicant's claims at CB 82-83 and the Authority’s Decision Record (DR), [5] (CB 103-4)
In support of those fears, the applicant referred to the following matters:
a)from 1996 - September 2012, in his role as branch manager of the Co-operative Society in Velanai, the applicant sold rice and other basic foods to members of the LTTE, and occasionally transported LTTE members on his motorcycle;[9]
b)the applicant's cousin drove trucks for the LTTE for approximately eight years, and was currently detained as a result of this activity. The applicant accompanied his cousin several times when he delivered meals and other goods to the LTTE;[10]
c)in early September 2012, the applicant was stopped by two armed, masked men, who he believed were members of the CID or other Sri Lankan authorities. The men demanded payment of Rs300,000-400,000 (AUD$2,471-$3,294), which he refused. Later that evening, the men attended the applicant's house, threatened him and his family at gunpoint, and seized gold which the applicant owned;[11]
d)after this incident, the applicant was stopped by the police and CID at a checkpoint, where he was told to purchase cigarettes and food for the officers with his own money. After doing so, the officers demanded that the applicant surrender his motorcycle to them, or they would beat or kill him. In the evening, when he returned, the officers returned his motorcycle without fuel, and the applicant was required to push it home. The applicant claimed that this occurred each day for approximately a week;[12] and
e)on or about 25 December 2012 (after the applicant's departure from Sri Lanka), the applicant's father was approached at the bus stop by members of the CID or another government agency. These men sedated the applicant's father, questioned him as to the applicant's whereabouts, detained him overnight, and stole his money and jewellery before returning him to the bus stop in the morning.[13]
[9] See [9] of the applicant's statement dated 14 March 2016 (applicant's statement) (CB 61); CB 82, 84; DR [5] (CB 103); DR [10] (CB 105)
[10] CB 83-4; DR [5] (CB 103); DR [10]-[11] (CB 105-6)
[11] See [10] of the applicant's statement (CB 61); CB 83-5; DR [5] (CB 104); DR [22] (CB 108)
[12] See [11]-[15] of the applicant's statement (CB 61); CB 83-5; DR [5] (CB 104); DR [23]-[24] (CB 108-109)
[13] See [17] of the applicant's statement (CB 62); CB 83, 85-6; DR [5] (CB 104); DR [26] (CB 109)
On 31 August 2016 the applicant participated in an interview with the delegate.[14] Some of the applicant’s evidence is set out in the delegate’s decision dated 5 April 2018.[15]
[14] CB 74, 83.7
[15] See for example CB 83-85
On 15 September 2016 the delegate made a decision refusing to grant the applicant a SHEV.[16]
[16] CB 81-93
Broadly, the delegate accepted each aspect of the applicant's account, except for the claim regarding his father's kidnapping and the fact that the applicant's cousin remained in detention.[17]
[17] CB 86
However, on the basis of country information, and the lack of any evidence that the applicant or his family members have been detained or otherwise harmed due to any real or perceived LTTE connection, the delegate did not accept that any fear of harm which the applicant may have on these bases was "well-founded" within the meaning of the Migration Act 1958 (Cth) (Migration Act).
Furthermore, the delegate was not satisfied that the applicant's likely treatment upon return to Sri Lanka would amount to "serious harm" within the meaning of the Migration Act, and/or would otherwise be administered pursuant to a general law of non-discriminatory application.[18]
[18] CB 86-90
On 20 September 2016 the Authority sent the applicant a letter informing him of the referral of the matter to the Authority and providing information about the Authority and referral.[19]
[19] CB 98-99
The Authority did not receive a written submission from the applicant.
The Authority accepted, or was "prepared to accept" all aspects of the applicant's claims, including that his cousin was currently in detention and that his father was kidnapped as claimed.[20]
[20] See specifically DR [13], [26]
However, and for the following reasons, the Authority did not accept that the applicant would face a real chance of serious harm if returned to Sri Lanka on any of the claimed bases.
Regarding the applicant's links with the LTTE, the Authority noted that the applicant:
a)"[did] not claim that he had been detained, interrogated, arrested, or questioned and released on suspicion of involvement with the LTTE";
b)did not claim "to have ever been questioned or interrogated about his cousin, or his links with the LTTE";
c)had not been detained under the Emergency Regulations or the Prevention of Terrorism Act 1978 (Sri Lanka); and
d)did not claim that he or his family had "been questioned or harmed or accused in the past because of links with the LTTE".[21]
[21] DR [12]-[15]
On this basis, the Authority concluded that the applicant "has not been regarded in the past by the Sri Lankan authorities as a member or supporter of the LTTE",[22] but his historical support for the LTTE "occurred because he lived in an area under LTTE control".[23] As his activities did not suggest that he had a profile consistent with those which country information identified to be at risk, the Authority did not accept that any fear of persecution on this basis was "well-founded".[24]
[22] DR [13]
[23] DR [20]
[24] DR [16]-[21]
Regarding the applicant's Tamil ethnicity, the Authority found that, "as upsetting as they would be", the applicant's treatment at the hands of Sri Lankan authorities "did not involve significant physical ill-treatment or physical harassment, or significant economic hardship or affect his capacity to earn a livelihood or other treatment that may be regarded as serious harm".[25]
[25] DR [28]
Furthermore, the Authority noted that "nothing further" had occurred to the applicant's family in the four years following the claimed kidnapping of the applicant's father in December 2012.[26] The Authority also noted that country information suggested that President Sirisena's government, which had assumed power since the applicant departed Sri Lanka, had demonstrated a "more proactive approach to human rights and reconciliation than the previous government".[27] Accordingly, the Authority did not accept that any fear of persecution on this basis was "well-founded".[28]
[26] DR [29]
[27] DR [30]
[28] DR [16]-[21]
Regarding the applicant's status as an illegal departee, the Authority did not accept that the applicant had a "relatively high profile", had the profile of an "anti-government activist", a "Tamil separatist" or a "person with links to the LTTE", or was otherwise of adverse interest to the Sri Lankan authorities as a result of the matters set out above.[29]
[29] DR [37]-[38].
Accordingly, the Authority relied upon country information to conclude that the most likely treatment was that the applicant would be processed in a "routine" manner, involving a period of detention whilst identity, character and security checks occur, charge under the Sri Lankan Immigrants and Emigrants Act 1949 (Immigrants and Emigrants Act), and sentence to payment of a fine.[30]
[30] DR [33]-[34], [36]-[37]
The Authority found that none of this treatment amounted to "serious harm" or "significant harm" as required by the Migration Act, and in any event, would be applied pursuant to a non-discriminatory law of general application, and as such, could not constitute "persecution" within the meaning of the Migration Act.[31]
[31] DR [35], [37]-[40]
On this basis, the Authority found that neither considered individually, nor cumulatively, did the applicant's claims demonstrate that there was a real chance that he would face serious harm if returned to Sri Lanka,[32] and thus the applicant did not satisfy s.36(2)(a) of the Migration Act.
[32] DR [41]
Regarding the complementary protection assessment, the Authority relied upon its findings with respect to the refugee assessment to find that the applicant did not face a real chance of serious harm on any of the claimed bases.
Furthermore, the Authority found that the applicant's likely treatment under the Immigrants and Emigrants Act, and/or his status as a "Tamil who is from an area previously under LTTE control and who sold food to the LTTE and provided them with very limited support" and "who was harassed by Sri Lankan authorities and paramilitaries and who departed Sri Lanka unlawfully" did not place him at a real risk of significant harm now or in the reasonably foreseeable future, if returned to Sri Lanka.[33]
[33] DR [45]-[46]
Notably, the Authority did not receive, and did not obtain, any "new information" in its review.[34]
[34] DR [4]

The present proceedings

These proceedings began with a show cause application filed on 3 April 2017. The applicant at trial sought to rely upon an amended application annexed to his submissions filed on 23 October 2018. The Minister opposed leave being granted, noting the very significant delay in amending the application, by reference to the procedural orders made in the matter. The Minister conceded, however, that the amendments made to Grounds 1 and 2 were of no great moment. The amended application introduced a new Ground 3 which was, however, not pressed. On that basis, I granted leave for the applicant to file and rely upon the amended application.
Grounds 1 and 2 in the application as amended are:
1. The Second respondent incorrectly or wrongly considered the real chance test and thereby committed a jurisdictional error. The Second Respondent in this context failed to address a question and issue.
Particulars
The Second respondent accepted that the applicant had a cousin who was involved with the LTTE as a truck driver for about eight years and who the applicant accompanied several times delivering goods for the LTTE. The second respondent also accepted that the applicant’s cousin had been detained by the authorities for at least eight years between about 2008 and 2016.
There is no consideration or finding by the Second respondent of the consequences that would occur if the authorities come to know these connections, in the near future in the context of risk profiles recognised in the UNHCR guide line. In the circumstances, the Second respondent failed to address, or properly address, the issue of whether the applicant, if required to return to Sri Lanka, faces a real chance of persecution as a result of his family link to his cousin.
2. The Second Respondent committed jurisdictional error by failing to consider or [make] a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.
Particulars:
2.1 The Applicant made it clear, and the Second respondent accepted, that the authorities did not know his connection with his cousin who is still in detention for LTTE connection and his other associations with the LTTE. One reason for his fear is that he feared persecution if the authorities come to know in the future. The Second respondent failed to consider whether, if the applicant is required to return to Sri Lanka, the authorities would be aware of the connection between the applicant and his cousin, and face a real chance of persecution as a result of his family link to his cousin.
The only evidence I have before me is the court book filed on 23 May 2017.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 9 November 2018.

Consideration

Applicant’s contentions

Counsel for the applicant dealt with the two grounds together. The applicant claimed that he had a cousin who worked as a truck driver for the LTTE for eight years transporting goods, the applicant accompanied his cousin several times when delivering goods to the LTTE and, as at 2016, the cousin had been detained by the Sri Lankan authorities for eight years and continued to be in detention.
The source of these claims is as follows:
a)the applicant’s written statement dated 14 March 2016 at [9] and [19]:[35]
… During the war, I gave them some assistance by selling basic food to them and occasionally giving members lifts on my motorcycle. My cousin was involved with the LTTE. However, the government did not know about my assistance or the fact that I had a cousin involved with the group.
… I am afraid that my relatively high profile puts me at a higher risk of harm from these groups.
b)the applicant’s SHEV interview on 31 August 2016 where the interviewer recorded at CB 83.8:
[35] CB 60-62
The additional claim provided by the applicant at the interview is summarized below:
·The applicant’s cousin was a truck driver for the LTTE. The applicant accompanied his cousin on two to three occasions when they delivered food and other goods to LTTE members. His cousin remains in detention.
The interviewer added at CB 84.6:
The applicant claims his cousin worked for the LTTE as a truck driver for eight years during the conflict. When asked if the applicant ever accompanied his cousin on drives he explained that he did accompany him two to three times where they drove around delivering meals and other goods to members of the LTTE. The applicant stated that the government were not aware that he had a cousin involved with the LTTE. When asked about the current whereabouts of his cousin, the applicant stated his cousin is currently in detention …
c)in relation to the point that the applicant’s cousin had been detained by the Sri Lankan authorities for eight years, see the Authority’s decision at [11] where it records that the applicant made this claim at the SHEV interview.
Some comments concerning the manner in which the Authority dealt with the applicant’s claims arising from his association with his cousin are as follows.
First, the Authority accepted this part of the applicant’s claims. Thus the Authority stated at [10]-[11]:[36]
The applicant claims that his cousin was involved with the LTTE as a truck driver for approximately eight years and that he accompanied his cousin several times delivering meals and other goods. The applicant also claims that as he was the Branch Manager at the local Co-operative he sold rice and other basic foods to the LTTE and occasionally transported them on his motorcycle. I accept the applicant’s claims in this regard …
In assessing the chance of the applicant facing harm in the future because of his and his cousin’s links with, and the support they provided to the LTTE, I note that the applicant stated that the Sri Lankan government was not aware of his involvement with and the support he provided for the LTTE or that he had a cousin involved with the LTTE. At the SHEV interview the applicant claimed that his cousin is in detention and has been for eight years … I am prepared to accept this claim that his maternal cousin is in detention because he drove a truck for the LTTE for about eight years.
[36] CB 105-106
The Authority repeated at [12]:
[The applicant] stated that the Sri Lankan government does not know about his cousin or the support the applicant provided to the LTTE.
On a fair reading of the Authority decision, the Authority accepted the applicant’s claim that at the time the applicant departed Sri Lanka, the Sri Lankan government did not know about his cousin or the support the applicant provided to the LTTE.
Secondly, the Authority accepted country information that persons with family links to certain categories of LTTE members and supporters may face a risk of persecution. The country information is considered by the Authority at [14]-[19]. Relevant parts of its decision are as follows:[37]
[14] … I note other sources of information which indicate that human rights violations continue to be perpetrated by the authorities against people with suspected links to the LTTE. For example, the International Truth and Justice Project reported in January 2016 that “Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted along with their families”.
[17] The UK Home Office noted that the Upper Tribunal in its 2013 decision identified the following categories of ‘at risk’ persons: (i) individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to … a renewal of hostilities within Sri Lanka …
[18] The UNHCR identifies the following cohorts of people who may be at risk of harm in Sri Lanka. (i) persons suspected of certain links with the LTTE; (ii) …
[19] In relation to persons suspected of links with the LTTE, the UNHCR states that these may, depending on the individual circumstances of the case, include: (1) Persons who held senior positions with considerable authority in the LTTE civilian administration … (4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE; … (6) Persons with family links or who are … otherwise closely related to persons with the above profiles.”
[37] CB 106-108

Thirdly, the Authority sought to dispose of this part of the applicant’s claims with the following findings at [20]-[21]:[38]
I find that the applicant does not fit the profile of persons identified by either the UNHCR or the UK Home Office as being potentially in need of international protection. I am satisfied that his role in selling food products to the LTTE from the local co-operative, occasionally giving them a lift on his motorcycle, and approximately three times driving with his cousin in his truck delivering goods for the LTTE occurred because he lived in an area under LTTE control. I am satisfied his activity in this regard is not indicative of a level of involvement which gives rise to a real chance of him being regarded as an LTTE supporter “involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE” or as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.
After assessing all the evidence I am satisfied that the applicant does not face a real chance of serious harm in the future in Sri Lanka because of his links with the LTTE.
[38] CB 108
The applicant’s complaint of jurisdictional error is as follows. The Authority accepted that:
a)the applicant’s cousin was involved with the LTTE as a truck driver transporting goods for eight years;
b)as at 2016, the applicant’s cousin had been detained by the Sri Lankan authorities for eight years. This means his detention commenced in 2008, and was continuing in 2016; and
c)the Sri Lankan authorities did not know about the family relationship between the applicant and the cousin at the time the applicant departed Sri Lanka.
In the applicant’s submission, it appears from the lengthy detention of the applicant’s cousin by the Sri Lankan authorities that the cousin was not any ordinary LTTE supporter or member. The lengthy and continuing detention suggests that the authorities had serious and continuing concerns about the cousin.
In light of the country information, which the Authority accepted,[39] concerning “Persons with family links or who are … otherwise closely related to” specified categories of LTTE members and supporters, a question is whether the Authority properly addressed the issue of whether the applicant, if required to return to Sri Lanka, faces a real chance of persecution as a result of his family link to his cousin. The applicant submits that the answer is “No”. The Authority’s critical finding is said to be at [20]:
I am satisfied his activity in this regard is not indicative of a level of involvement which gives rise to a real chance of him being regarded as an LTTE supporter “involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE” or as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.
[39] At [19]
There are said to be at least three problems with the finding at [20] as follows.
First, the finding focuses on the activity of the applicant. For example, the correct (and a fair) reading of the finding is said to be:
I am satisfied his activity in this regard is not indicative of a level of involvement which gives rise to a real chance of him being regarded:
i.as an LTTE supporter “involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE” or
ii.as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.
Each of the two limbs of the finding focuses on the activity of the applicant. Yet whether or not the applicant faces a real chance of persecution arising from his family link to his cousin turns principally on the nature and significance of the cousin’s involvement with the LTTE, and the closeness of the connection between the applicant and cousin.
Secondly, as stated above, whether or not the applicant faces a real chance of persecution arising from his family link to his cousin turns in part on the nature and significance of the cousin’s involvement with the LTTE, including whether the cousin fits within the following category recognised in the 2012 UNHCR Eligibility Guidelines “(4) Former LTTE supporters who may never have undergone military training but were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE”. Yet the Authority did not address this issue in its reasons for decision. In light of the Authority’s statutory obligation to give reasons for its decision which “set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”,[40] the applicant contends that the Court can conclude that the Authority overlooked the issue.[41]
[40] See s.473EA of the Migration Act and s.25D of the Acts Interpretation Act 1901 (Cth)
[41] See Minister for Immigration v Yusuf (2001) 206 CLR 323 at [69]; Kalala v Minister for Immigration (2001) 114 FCR 212 at [23]; WAEE v Minister for Immigration (2004) 236 FCR 593 at [47]; Lafu v Minister for Immigration (2009) 112 ALD 1 (Full Court) at [53]-[54]; Cotterill v Minister for Immigration (2016) 330 ALR 617 (Full Court) at [100]-[106] and [121]-[123]
Thirdly, the Authority relied significantly on the past fact that the applicant “has never been questioned or charged in this regard in the past”. While this finding concerning a past fact is correct, the Authority did not address the question of whether there was a real chance that the Sri Lankan authorities would, on or following the applicant’s return to Sri Lanka, become aware of the family link between the applicant and his cousin. Given the Authority’s findings at [33], [34] and [36] that “on return to Sri Lanka the applicant will be questioned at the airport and will undergo identification, character and security checks”, “on being returned to Sri Lanka the applicant will be held on remand for a number of hours whilst the identity, character and security checks are completed” and “the Sri Lankan authorities may assume that the applicant sought protection in Australia”, there is said to be a real possibility that the Sri Lankan authorities will become aware of the family link between the applicant and his cousin during this process. Again, the applicant contends that the fact that the Authority did not expressly address this issue in its reasons for decision allows the Court to conclude that the Authority overlooked the issue.
In summary, the applicant contends that the Authority committed a jurisdictional error in dealing with (or failing properly to deal with) the issue of whether the applicant, if required to return to Sri Lanka, faces a real chance of persecution as a result of his family link to his cousin.

Minister’s contentions

Ground 1 - proper application of the "real chance" test

The Minister submits that the applicant's submissions on this basis appear to proceed upon a misunderstanding of the Authority’s reasons.
Properly understood, the Authority’s findings with respect to this claim do not depend upon the Sri Lankan authorities' supposed lack of knowledge about the applicant's connections with the LTTE.
Instead, they rest upon findings that the applicant's connection with the LTTE (both directly, and through his cousin) was not such that it would prompt adverse action from the Sri Lankan authorities, even if they were to learn of his previous activities and his connection to his cousin.
At [6]-[7] of its decision, the Authority noted that ss.5H(1) and 5J of the Migration Act[42] required the applicant to demonstrate that he has a "well-founded fear of persecution" in the receiving country. As the Authority explained, s.5J(1)(b) of the Migration Act requires, for a fear to be "well-founded", that there be a "real chance" (being a "substantial, as distinct from a remote chance")[43] of that persecution occurring.
[42] Both of which were annexed to the Authority's decision
[43] Chan v Minister for Immigration (1989) 169 CLR 379, 389
As set out in Minister for Immigration v Wu Shan Liang, [44] determining whether a "real chance" of persecution exists involves "making findings as to primary facts, identifying the inferences which may properly be drawn from [them] and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned" to Sri Lanka.
[44] (1996) 185 CLR 259, 294
In the Minister's submission, this is precisely the process which the Authority adopted in this case.
The Authority accepted that the applicant claimed that "his cousin was involved with the LTTE as a truck driver for approximately eight years and that he accompanied his cousin several times delivering meals and other goods".[45] Although expressing some doubt about the veracity of the claim that the applicant's cousin remained in detention due to the assistance he provided to the LTTE, the Authority was “prepared to accept” this aspect of the applicant's claim.[46]
[45] DR [10] (CB 105)
[46] DR [11] (CB 106)
Importantly, the Authority observed that the applicant "stated that the Sri Lankan government was not aware of his involvement with and the support he provided for the LTTE or that he had a cousin involved with the LTTE".[47]
[47] DR [11] (CB 105)
However, and as set out at [19]-[20] above, the Authority then considered that the applicant's evidence did not suggest he or his family had come to the attention of the authorities as a result of these activities, nor that any of the harassment which it accepted he had experienced was related to them.
Furthermore, at [16]-[20][48] and [37] of its decision,[49] the Authority then considered whether the applicant's involvement with the LTTE was such that the applicant was likely to become the subject of adverse attention from the Sri Lankan authorities.
[48] CB 107-8
[49] CB 111
As set out at [19] above, the Authority found (on the basis of country information) that this would not be the case, as the applicant's involvement with the LTTE appeared to be no more than ordinary in LTTE-controlled areas, and thus not likely to attract the authorities' attention.
In support of this finding, the country information before the Authority did not indicate that any LTTE connection would suffice to place a person at a risk of harm from Sri Lankan authorities.[50] Instead, the country information considered by the Authority identified a range of categories of persons who may be considered to be "at risk" if returned to Sri Lanka.
[50] CB 108
The Authority considered whether the applicant met any of these prescribed categories of persons at [20]. It found that that the applicant "does not fit the profile of persons identified by either the UNHCR or the UK Home Office as potentially being in need of international protection".
Furthermore, and by explicit reference to the UNHCR guidelines, the Authority continued to find that his past connection with the LTTE (both individually, and through his cousin) was:
not indicative of a level of involvement which gives rise to a real chance of him being regarded as a LTTE supporter “involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE” or as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.
The Minister submits that, contrary to the applicant's submissions at [45] above, the Authority’s reasons thus directly addressed the nature and significance of the cousin's involvement with the LTTE and the closeness of the connection between the applicant and his cousin. This did not require the Authority to assess the risk of harm the applicant's cousin might face, and/or his cousin's position in light of the country information before it.
In the Minister's submission, this was an entirely proper application of the "real risk" test, which is not affected by the error asserted by the applicant. This is sufficient to dispose of this ground, as the question of whether established claims are sufficiently serious as to amount to persecution is a question of fact and degree to be addressed by the Authority, and not by the Court.[51]
[51] VDAU v Minister for Immigration [2004] FCAFC 32, [24]; Abdul Raheem v Minister for Immigration [2001] FCA 940, [31]
However, it should also be noted that nothing in the evidence before the Authority indicated that it was likely that the Sri Lankan authorities would come to know of the applicant's LTTE association, even in the course of conducting its "identification, character and security checks" on his return.
The Minister submits that, in circumstances where the Authority’s findings regarding the applicant's profile were expressed unequivocally and based upon clear evidence, the Authority did not fall into error by choosing not to undertake a "counter-factual" analysis and consider whether the applicant would face a real risk of harm if Sri Lankan authorities learned of the applicant's LTTE connections.[52]
[52] Minister for Immigration v Guo (1997) 191 CLR 559, 575; Minister for Immigration v Rajalingam (1999) 93 FCR 220, 240-1
The Minister contends that, on the evidence before the Authority, any such consideration would have amounted to "conjecture", "surmise" or "speculation", none of which can sustain a "well-founded" fear of persecution.[53]
[53] Guo at 572

Ground 2 - failure to consider an "integer" of a claim

In respect of Ground 2, the Minister repeats and relies upon the submissions made in respect of the first ground.
In particular, the Authority expressly noted the applicant's claims that the Sri Lankan authorities were "not aware" and "did not know" of the applicant's connections to his cousin, and to the LTTE.
However, for the reasons set out above, the Authority found that the applicant's claimed connections to the LTTE, individually and through his cousin, did not rise to a level such that the applicant would face a risk of harm, even if the Sri Lankan authorities came to know of their full extent.
In doing so, the Minister submits that the Authority did not fail to consider any claim "squarely arising" on the material before it, but instead disposed of that claim on a basis which simply did not depend upon the Sri Lankan authorities’ supposed lack of knowledge about the applicant's connections.

Resolution

In my opinion, the Authority did not fall into jurisdictional error in the manner claimed. First, the Authority recognised at [5][54] at the third dot point the applicant’s claim in relation to his cousin. Secondly, the Authority recognised the claim as relating to the applicant’s risk profile concerning links with the LTTE at [10] of its reasons.[55] Thirdly, the Authority accepted at [11][56] that the applicant’s cousin has been in detention for about eight years because of his work for the LTTE. The Authority there recognised that the cousin was a maternal cousin of the applicant. The cousin was never named.
[54] CB 103
[55] CB 105
[56] CB 106
The Authority also recognised at [12] that the applicant asserted that the Sri Lankan government does not know about any links between him and his cousin. The Authority stated in that paragraph:
I note that the applicant does not claim to have ever been questioned or interrogated about his cousin, or his links with the LTTE. He stated that the Sri Lankan government does not know about his cousin or the support the applicant provided to the LTTE. I note that the applicant has not been detained under the Emergency Regulations or the Prevention of Terrorism Act (PTA). Australia's Department of Foreign Affairs and Trade (DFAT) in its report on people with links to the LTTE refers to a 2010 report by the International Commission of Jurists in which it is stated that "any association with the LTTE at that time was grounds for arrest. The large majority of those arrested were sent to Government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka's court system. In addition to those arrested, many civilians were also questioned and released towards the end of the conflict".[57] According to DFAT "In the north and east, Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations of the area. For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil Internally Displaced People (IDPs) who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the police Criminal Investigation Department (CID) for interviews".[58]
[57] DFAT, “Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam”, 3 October 2014
[58] Ibid
Next, the Authority recognised from country information at [18] and [19][59] that persons with family links or who are dependent on or otherwise closely related to persons with a substantial risk profile may themselves be at risk.
[59] CB 107-108
The Tribunal’s reasoning in relation to the applicant’s claim concerning his cousin is set out at [20]:[60]
I find that the applicant does not fit the profile of persons identified by either the UNHCR or the UK Home Office as being potentially in need of international protection. I am satisfied that his role in selling food products to the LTTE from the local co-operative, occasionally giving them a lift on his motorcycle, and approximately three times driving with his cousin in his truck delivering goods for the LTTE occurred because he lived in an area under LTTE control. I am satisfied his activity in this regard is not indicative of a level of involvement which gives rise to a real chance of him being regarded as an LTTE supporter "involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE" or as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.
[60] CB 108
The Authority was entitled to conclude, on the basis of the information before it, that the applicant did not face a real chance or risk of serious or significant harm because of his connection with his cousin. First, there was nothing in the applicant’s previous activities that exposed him to a real chance or risk of harm. Secondly, the familial relationship with the applicant’s cousin was not known to the Sri Lankan authorities and nothing had been put to the Authority to indicate that the link would become known. Importantly, the cousin was never named. The fact that the cousin is a maternal cousin might suggest that a familial link was not obvious.
In my view, the Authority did not misconstrue the real chance test or overlook any element or integer of the applicant’s claims. The Authority recognised and considered the claim concerning the applicant’s cousin and was not satisfied that, either on the basis of the family link itself, or the former activities of the applicant, a real chance or real risk of harm arose.
In that regard, it was an open question whether the applicant could be said to be “closely related” to his cousin. The expression “cousin” is an elastic term and encompasses not only a child of a sibling of one’s parent but also more distant relationships. The applicant never explained to the Authority precisely what the relationship was, except that it was on his mother’s side.
The Authority was entitled to conclude, as it did at [21],[61] that the applicant’s fears were not well-founded.
[61] CB 108

Conclusion

I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 21 December 2018