BSR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 164
•21 February 2020
FEDERAL COURT OF AUSTRALIA
BSR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 164
Appeal from: BSR16 v Minister for Immigration and Border Protection [2019] FCCA 2306 File number: NSD 1481 of 2019 Judge: PERRAM J Date of judgment: 21 February 2020 Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing application for judicial review of decision of Administrative Appeals Tribunal to refuse to issue Appellant a Protection (Class XA) visa – where Appellant, a Sri Lankan Tamil, fled Sri Lanka for India as a child and has since lost right to return to India – whether Tribunal failed to consider integers of claim concerning Appellant’s status as a Sri Lankan Tamil refugee returning from Australia – whether Tribunal failed to consider claim that Appellant would be arrested on return to Sri Lanka for having departed illegally – whether Tribunal obliged to disclose newspaper article relied upon under Migration Act 1958 (Cth) s 424A – whether information subject to an invalid s 438 certificate not disclosed to Appellant ‘material’ so as to constitute jurisdictional error
MIGRATION – where Appellant raised possible sur place claim at hearing – where no such claims subject of a current visa application – where First Respondent made representations that steps would be taken to assess sur place claim prior to any removal of Appellant from Australia
Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 36, 46A, 198, 424A, 438
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Foreigners Act 1946 (India)
Immigrants and Emigrants Act 1948 (Sri Lanka)
Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Date of hearing: 3 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 61 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Downie of Minter Ellison Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1481 of 2019 BETWEEN: BSR16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
21 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The proceeding be listed for a case management hearing on 1 April 2020 at 9.30 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
BACKGROUND
The Appellant’s background in Sri Lanka and India
The Appellant was born in Jaffna in Sri Lanka in 1982 and is a Sri Lankan citizen. He is of Tamil ethnicity and Hindu faith. Jaffna is the capital city of the northern province of Sri Lanka and is located on its northern tip. It was badly damaged and depopulated as a result of the conflict between the predominantly Sinhalese Sri Lankan government and Tamil separatists which took place between 1983 and 2009. During that time, around 300,000 Tamils fled to India. At present, around 200,000 of these people have returned to Sri Lanka but 100,000 or so Sri Lankan Tamils still remain in India.
Prior to travelling to Australia, the Appellant was part of this Sri Lankan diaspora in India. The situation in Jaffna in 1990 was desperate. It was being successively occupied and controlled by the military forces of the Liberation Tigers of Tamil Eelam (‘the LTTE’, perhaps better known as the Tamil Tigers), their opponents the Sri Lankan Army (‘the SLA’) and, for a period, an Indian peace keeping force. Much of the city was destroyed. At an interview conducted by Australian authorities after his arrival, the Appellant described the situation in Jaffa just before he left:
there was a war happening at that time, and, you know, a lot of people were dying. You know, even walking down the street, people would be running past, you know, and screaming, so people were dying at that time.
In or around 1990 the Appellant’s father had been killed by a bomb and sometime after that the family fled Jaffna for Chennai which is in the South Indian state of Tamil Nadu. Tamil Nadu is immediately across the Palk Strait from Sri Lanka. At that time of the family’s flight the Appellant was eight years old.
There were successive waves of Sri Lankan Tamil refugees into Tamil Nadu as a result of the chaos caused by the insurgency and the Sri Lankan government’s response to it. Without dwelling on the detail or becoming enmeshed unnecessarily in the intricacies of its various controversies, it may be said that the situation of Sri Lankan Tamil refugees in Tamil Nadu constitutes a difficult and longstanding social problem for that state.
Upon their arrival in 1990 the Appellant and his family stayed in a Tamil refugee camp in, or in any event nearby, Chennai. The Appellant had completed his primary school education in Jaffna prior to the family’s departure but between 1995 (when he was 13) and 2006 (when he was 24) he was educated at the Indira Ghandi International Academy, a Sri Lankan refugee school in Bangalore to a standard which would be equivalent to having completed year 10 in this country. Neither the delegate of the First Respondent (‘the Minister’) nor the Administrative Appeals Tribunal (‘the Tribunal’) commented on the fact that the Indira Ghandi International Academy is in Karnataka, another South Indian state distinct from Tamil Nadu, or what the implications of that might be (i.e., that the Appellant had lived in Bangalore for ten years and not the refugee camp in Chennai). During the hearing I clarified with the Appellant that he had indeed been at high school in Bangalore and that it was a boarding school. He did not finish his studies at school until he was 24.
From about the age of 24 until he was 30 the Appellant worked in the construction industry in India in various roles such as painting, plumbing and the loading and unloading of cargo. When he was about 26 he married and he and his wife have two sons. He also has a sister. His surviving family all remain in the refugee camp in Chennai.
Sri Lanka’s ethnic Tamils in India are permitted to stay in that country under the provisions of the late Imperial Foreigners Act 1946 (India), although authorities retain discretionary power to expel foreigners. In practice, so far as the Appellant is concerned, this would involve registering with the Indian Foreign Residency Registration Office as a displaced person. The residency right flowing from that is, however, lost if the holder leaves India. As will be seen, this fact is of some importance in the present appeal.
The Appellant’s departure from India
In April 2012, the Appellant made arrangements through an uncle to leave India and travel to Australia. Ultimately, this involved the use of people smugglers. To pay them the Appellant was required to raise the sum of 200,000 rupees, which in April 2012 equated to approximately AUD3,700. To do this he used all of his family’s money and sold his wife’s jewellery. The departure date was set for 11 June 2012.
On the evening of 11 June 2012 the Appellant left the refugee camp in Chennai on a local bus and travelled to the Padinallur temple in a northern suburb of Chennai from which he was later picked up in a car. The car took him on a six-hour drive to Karaikal, a port town south of Chennai, where a boat (eventually designated ‘Narko’ by Australian authorities) was waiting. Although neither the delegate nor the Tribunal gave much attention to the Narko it seems to have been an ocean going vessel of sufficient size to hold around 25 to 30 individuals and to have been diesel powered.
When the Appellant arrived under the cover of darkness at the wharf at which the Narko was moored, others had already congregated there who likewise were travelling to Australia. The Narko was around 5m in length. Even after the Appellant had joined this group, more people kept arriving for the voyage. The Appellant eventually embarked on the Narko late that night and it departed under the control of two Indian fishermen. The Appellant told me that there were 97 on board this small vessel but the delegate seemed to think there were about 25. This anomaly is not of present relevance.
About an hour after the voyage began, the two fishermen began to explain to the passengers how to get to Christmas Island using some kind of navigation device which was on board. Having imparted this important information, the fishermen then leapt from the boat and swam back to shore leaving the passengers alone under the night sky to find their way across the Indian Ocean to Christmas Island. The danger of voyaging across the Indian Ocean in a small boat crammed with people will be apparent.
The Appellant’s voyage and his arrival in Australia
The Appellant told this Court that the voyage had taken 19 days in all and that he had been seasick for five of those days. Eventually after days of nausea but also what the Appellant referred to as the ‘cheerful’ sighting of a few dolphins, the Narko encountered some Indonesian fishermen who sold them some water and diesel, both of which were by that time scarce. The Narko then made its way to Christmas Island and was intercepted just off the coast by an Australian Customs and Border Protection vessel which then escorted it to Flying Fish Cove. There, on 28 June 2012, the Appellant disembarked. As already mentioned the Australian authorities designated the vessel Narko and it was given the designation NAR021.
Of some significance is the fact that at the time of his disembarkation the Appellant did not hold a valid visa and was not a citizen of Australia. This had two legal consequences. First, because he was a non-citizen who did not hold a valid visa, he was an ‘unlawful non-citizen’ and, as such, was required to be held in immigration detention. He was thus taken from Flying Fish Cove to the Christmas Island Detention Centre where he was initially detained. Secondly, a person who first enters Australia at, inter alia, an excised offshore entry place such as Christmas Island on board a boat and without a visa is an ‘unauthorised maritime arrival’ (although at the time of the Appellant’s arrival it was then an ‘illegal maritime arrival’): Migration Act 1958 (Cth) (‘the Act’) s 5AA. The immediate consequence of that unenviable status is that such a person is not permitted to apply for a visa unless the Minister administering the Act first decides that this should be permitted: s 46A. A further consequence of the Appellant’s departure from India and his arrival in Australia was that, as a matter of Indian law and as noted above, he was no longer entitled to return to India.
On the same day he arrived at Christmas Island, 28 June 2012, the Appellant was briefly interviewed with the assistance of an interpreter. At this interview, only basic information was elicited from him. I add for completeness that the Appellant’s first language is, unsurprisingly, Tamil but that he can read, write and speak English to an extent. The hearing in this Court was conducted with the assistance of a Tamil interpreter, Ms Najan.
On 3 September 2012 he was transferred from Christmas Island to the Wickham Point Detention Centre which is south of Darwin. On 28 August 2012, he was interviewed more extensively by two officers of the Department with the assistance of an interpreter. His answers were transcribed and a document was subsequently produced which the Appellant signed as accurate on 23 November 2012.
During this interview the Appellant explained the difficult situation of Tamil refugees in Tamil Nadu. For example, they were required to sign in and out of the refugee camp and, practically speaking, local businesses would not employ a person once it became apparent that they were Sri Lankan with the unfortunate consequence that the Sri Lankan refugees in Tamil Nadu are essentially confined to manual work on low wages. He thought that a life in a refugee camp with no prospects provided no kind of future for his family. He explained that they could not go to Sri Lanka because he had left in 1990 and did not even know whether they still had a house there and, so he said, there was also always the prospect that the war might start again.
The Appellant’s account of his concerns of returning to Sri Lanka were not very developed during this second interview. Because he later gave a more detailed account, it is worth noting at this stage that he was asked in this second interview whether he had been involved in any protests against the government and had answered ‘no’ and he had also said that he never been detained by the police. He also made no mention of a visit to the refugee camp by relatives of his who belonged to the LTTE. As will be seen subsequently, in his protection visa application he departed from these positions by saying that he had been involved in protests about the treatment of Tamils in Sri Lanka in 2009, had been questioned by police in relation to those protests on five or six occasions and had been visited more than once by two cousins of his mother who belonged to the LTTE.
On 16 October 2012, he was transferred to the Scherger Detention Centre which is near Weipa in Queensland. On 28 August 2013, the Appellant was granted a bridging visa and released from immigration detention. He took up residence in a suburb in Sydney. As I understand it, this bridging visa has been renewed whilst his application for the protection visa has wound its way through the government, and more recently, the Courts.
The protection visa application
On 25 September 2013 the Appellant prepared an application for a Protection (Class XA) visa with the assistance of a solicitor located in Melbourne, Ms Smidt. At that time he was living in Sydney. The application was accompanied by a statutory declaration which set out his claims. The application was lodged on 30 September 2013. Although neither the delegate nor the Tribunal referred to this fact, it appears not to be in dispute that at some time prior to 25 September 2013, the Minister had exercised his personal power under s 46A to permit the Appellant to apply for a protection visa.
In his statutory declaration the Appellant now explained that the account he had given at the second interview about his concerns as to what would happen to him if he was returned to Sri Lanka was somewhat limited because he had been responding to questions asked which were mostly about his family and which he assumed must have been the important information from the interviewers’ perspectives since that was that they kept asking him about. He now gave a more detailed account of this concerns. In summary they were as follows:
·Although he did not have firsthand information since he had not been to Sri Lanka in many years, he had read in both the newspapers and on the internet that Tamils were being arrested, tortured and killed in Sri Lanka.
·He was afraid of the Sri Lankan government and the SLA.
·He understood that young Tamil men were at risk of serious harm on the basis of their ethnicity.
·He was concerned that he might be perceived to be, even though he was not, a supporter of the LTTE. This was because two of his mother’s cousins had joined the LTTE and after visiting his family in the refugee camp in 2008 had told him about their membership, although they did not disclose precisely what this might have entailed. He had not received any word of these cousins since that time and believed that they had probably been killed in around 2009.
·It was well-known in the refugee camp that the two cousins belonged to the LTTE and he believed that this was also now known to the Sri Lankan authorities.
·The Appellant himself had taken part in protest action in 2009 to raise awareness about the plight of Tamils in Sri Lanka. He had also put up posters and organised meetings in relation to the same cause. These meetings had, at one time or another, come to involve most of the people in the refugee camp.
·As a result of these activities the Appellant claimed that he had been interviewed by a branch of the Indian Police known as the ‘Q Branch’ on six or seven occasions over a three-month period from April 2009. It appears that the Q Branch are the police in Tamil Nadu who deal with terrorism and particularly with terrorism with a Sri Lankan flavour. Although he was threatened by the Q Branch with gaol, he was in fact never gaoled or assaulted (although others of his acquaintance were). After the last of these encounters with the Q Branch, the Appellant stopped attending protests. It was the Appellant’s claim that what was known to the Q Branch would be known to the Sri Lankan authorities so that they would now be well-aware of his participation in these protests. The Appellant was concerned that this would create problems for him if he were returned to Sri Lanka.
·His sense of vulnerability was increased because if he were returned to Sri Lanka he would have no support from anybody since his family were all in India.
The protection visa application was also accompanied by a detailed written submission prepared by the lawyer to whom reference has already been made. This submission advanced his claims for protection on the three bases: (a) that he was ethnically Tamil; (b) that he would be perceived to be a supporter of the LTTE; and, (c) that he was a member of the social group consisting of failed asylum seekers who had departed Sri Lanka illegally. The submission also provided references to a large amount of information about the political situation in Sri Lanka.
On 13 May 2014, a delegate of the Minister invited the Appellant to an interview to discuss his claims for protection. The interview was to take place at 11am on 16 June 2014 in Sydney but appears not to have proceeded. A fresh interview was organised for 15 August 2014 at 1pm. This, too, appears to have been postponed and the interview eventually took place on 3 September 2014. The transcript of that interview was not included amongst the appeal papers in this Court.
The delegate’s decision
A few weeks later, on 7 October 2014, the Department informed the Appellant that his application for the protection visa had been refused and provided him with the delegate’s reasons for that decision.
The delegate accepted that the Appellant was who he claimed to be and was a citizen of Sri Lanka. He also accepted that by departing from India the Appellant had lost his right to reside there. In practical terms, this meant that the question of whether he was refugee under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Refugees Convention’) was to be assessed on the basis of an analysis of what would occur to him if he were returned to Sri Lanka, and not India. He then recited the Appellant’s claims as disclosed in his statutory declaration which I have summarised above and noted that the written submission had also added a claim based on his membership of the group of failed asylum seekers who had departed Sri Lanka illegally. This articulation of the Appellant’s claims was accurate.
The delegate then turned to the individual integers of his claims. The first topic with which he dealt was the visit to the refugee camp by two of his mother’s cousins. The delegate accepted that the cousins existed but did not accept that they were members of the LTTE or that they had visited the refugee camp whilst conducting LTTE business. There were three basic reasons for this:
(1)a perceived contradiction between the Appellant’s account that he knew little about their role with the LTTE and that their visits to the camp had been brief, on the one hand, with his other statement that they were well-known in the camp as being involved with the LTTE on the other;
(2)the Appellant had failed to mention the cousins’ visits to the camp in his entry interview; and
(3)the delegate considered that if what the Appellant said had occurred then he would have been interrogated by the police about it (which had not occurred). The delegate did not note that in 2008 he was at the Indira Ghandi International Academy in Bangalore. One must therefore assume that these events occurred whilst he had returned from Bangalore to Chennai. I asked the Appellant about this and he agreed that his protest action had occurred whilst he was on holidays back from Bangalore. Since he was stopped by the police six or seven times over a three-month period this appears to have been quite a long holiday but I do not know anything about school holidays in Bangalore and neither the Tribunal nor the delegate examined this aspect of the matter. In that circumstance, it is unnecessary and irrelevant to pursue this aspect of the matter any further.
The second topic was his support of and participation in protests about the position of Tamils in Sri Lanka in 2009 and his questioning by the Q Branch of the Tamil Nadu police about these protests. The delegate accepted that the Appellant had taken part in the protests and was involved in their organisation as claimed but that his activities were ‘low level administrative activities’ and that he would not have had any raised profile by reason of them. The delegate also accepted that the Appellant had been questioned by the Q Branch and warned six times about leaving the camp to attend protest meetings when he had been told by the officer that he would be gaoled if he continued to do so.
In light of those findings the delegate then turned to an assessment of the three claims for protection made by the claimant. The first of these was based on his Tamil ethnicity. He rejected this claim on the basis that there were credible reports that suggested that Tamils who were not associated with the LTTE, whilst perhaps facing some discrimination in Sri Lanka, did not face a real fear of persecution or a cumulative experience of discrimination that would amount to persecution in Sri Lanka. He therefore rejected this claim.
The second claim was based on an imputed political opinion that the Appellant was a supporter of the LTTE or otherwise the holder of Tamil separatist views. This the delegate rejected because he did not accept that the cousins were members of the LTTE or that they had visited him in the camp. Even if they were, he noted reports that only immediate family faced an increased risk. It also thought his departure from Sri Lanka at the age of eight tended decrease the risk to him. It also did not accept that the Appellant was singled out by the Q Branch and did not think that his low level administrative role in the protests would give him a sufficient profile to be at risk. He therefore did not accept this claim.
Finally, the delegate turned to the Appellant’s potential position as a failed asylum seeker. Here he relied upon reports which suggested that whilst failed asylum seekers who had departed Sri Lanka illegally were often briefly detained on their return and sometimes fined, that was all that happened to them. The situation was otherwise for persons with links to the LTTE but the Appellant was not such a person. The delegate therefore rejected the claim.
In those circumstances, the delegate concluded that the Appellant did not have a well-founded fear of persecution for a Refugees Convention reason and was not a refugee within the meaning of s 5H. He also concluded, largely for similar reasons, that he was not entitled to complementary protection under s 36(2)(aa). The application for the protection visa was refused.
PROCEEDINGS IN THE ADMINISTRATIVE APPEALS TRIBUNAL
On 10 November 2014 the Appellant applied for a review of the delegate’s decision before the then Refugee Review Tribunal. On 19 January 2016—14 months later—he was invited to attend a hearing before the Administrative Appeals Tribunal on 24 February 2016 (into which the Refugee Review Tribunal had by then been merged). On 1 June 2016 the Tribunal wrote to the Appellant and told him that the decision under review had been affirmed and provided reasons for that decision.
The Tribunal accepted the Appellant’s background history along the lines which I have already set out above and, with some caveats, largely accepted the account he gave of his life story. It did, however, reject some elements. Although to an extent sceptical about the existence of the Appellant’s mother’s cousins (who he claimed visited him in the camp), the Tribunal appears to have accepted that the cousins did exist. It did not accept, however, that they had visited him the in camp as he alleged or that it was widely known in the camp that they were associated with the LTTE. Even if those matters were assumed in the Appellant’s favour, the Tribunal also did not accept that any of that information would ever have been communicated to the Sri Lankan authorities. Consequently, it did not accept that he would have imputed to him any connection to the LTTE by reason of the mother’s cousins.
Like the delegate, the Tribunal accepted that the Appellant had participated in protests in 2009 about the position of Tamils in Sri Lanka and that he was warned about this by the Q Branch after which he had stopped being involved. The Tribunal thought that the Q Branch did not suspect him of being associated with the LTTE because they had not arrested him which it thought would have happened if the Q Branch did think he had such a link. Consequently, the Tribunal did not accept that the Appellant was likely to be perceived as an LTTE supporter merely by reason of his participation in these activities.
The Tribunal then reasoned that the information available to it did not suggest that Tamils per se faced difficulties and it did not think that he had a well-founded fear of persecution on that account. It did accept that he was a member of the class of failed asylum seekers who had departed Sir Lanka illegally, but it did not think that the processing of that class on their return gave rise to a well-founded fear of persecution other than for those who had a connection with the LTTE. It also thought that given he was eight years old when he left was also apt to diminish any difficulties he might face.
The Tribunal therefore concluded that he did not have a well-founded fear of persecution for a Refugees Convention reason if returned to Sri Lanka and, for the same reasons, it also concluded that he was not entitled to complementary protection.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
The grounds of review
On 11 July 2016 the Appellant applied to the Federal Circuit Court for orders quashing the Tribunal’s determination and requiring it determine his review application according to law. In support of those grounds it was first said that the Tribunal had failed to consider the full integers of a number claims he had made (Review Ground 1). It was said, in this regard, that the Tribunal had not considered his claim that he fell in the ‘uniquely vulnerable category of “involuntarily returned Sri Lankan Refugees in India”’ and had instead confined its attention to Sri Lankan refugees who had been returned from India under the auspices of a repatriation programme administered by the United Nations High Commissioner for Refugees (‘UNHCR’). He articulated a second version of this argument to the effect that the class of Sri Lankan refugees who escaped India to Australia fell outside the UNHCR repatriation programme.
Next it was said that the Tribunal had failed to consider his claim that he would be arrested on suspicion of having contravened the Immigrants and Emigrants Act 1948 (Sri Lanka) (‘the I&E Act’) for having left Sri Lanka illegally (Review Ground 2). The Tribunal had concluded that this was unlikely since he had left when he was eight but the Appellant now contended in particular (c) to that ground that in reaching that conclusion the Tribunal had:
failed to consider that the decision to pursue charges [would] happen subsequent to [the] arrest of the [Appellant] and the findings being communicated to the Attorney General of Sri Lanka.
Lastly it was said that the Tribunal had relied upon a newspaper article dated 5 May 2016 which indicated the attitude of the Sri Lankan government to Sri Lankan refugees who were returned from India to Sri Lanka. The Appellant claimed that this article was adverse to his interests and had not been put to him by the Tribunal (Review Ground 3).
Review Ground 1
On 23 August 2019 the Federal Circuit Court dismissed the Appellant’s application with costs: BSR16 v Minister for Immigration and Border Protection [2019] FCCA 2306. Judge Barnes interpreted Review Ground 1 as involving two contentions:
(1)the Appellant was a member of the particular social group of Sri Lankan Tamils who were refugees in India and who had been returned involuntarily; and
(2)the Tribunal had erred in confining its attention to the position of Sri Lankan Tamil refugees who had been returned to Sri Lanka from India.
I agree with her Honour’s conclusion on the first contention: the Appellant never advanced his membership of that social group as the basis for his application.
As to her Honour’s treatment of the second contention, the matter is a little more complex. Her Honour rejected that contention because she did not think this was, in fact, what the Tribunal had done. Part of the Appellant’s point about this topic was that at [58] of its reasons the Tribunal appeared to examine the position of Tamils who were returned to Sri Lanka from India. These returns had occurred under the auspices of the UNHCR repatriation programme. At [58] the Tribunal had intimated that persons returned under this scheme were provided by the UNHCR with reintegration assistance, including support and onward transportation from the airport to home areas, a reintegration grant and on-going protection monitoring post-home. The Appellant’s essential contention about this is that the benefits of this program did not inure to him since he would not have been returned to Sri Lanka from India.
Neither the reasons of the Tribunal nor the Federal Circuit Court are completely clear on this topic. However, the underlying material is quite plain. The Tribunal was assessing the Appellant’s contention that because he had not lived in Sri Lanka since he was eight years old he would be completely unsupported if he were returned to a place with which he had neither physical nor familial connections. The Tribunal accessed a report prepared by the UNHCR entitled UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka dated 21 December 2012 (‘the UNHCR Eligibility Guidelines’). This is a very fulsome document which provides a great deal of information about the position of Tamils returning to Sri Lanka after the civil war. In section A2 of that report the following passage appears:
A.2 Return of Refugees and Failed Asylum-seekers
In 2011, a total of 1,728 refugees returned to Sri Lanka through the facilitated voluntary repatriation programme from India, which is supported by the Governments of India and Sri Lanka and facilitated by UNHCR. This was a decline compared to the previous year, when some 2,054 individuals returned. A commercial ferry service from Tamil Nadu to Colombo raised additional interest in voluntary repatriation in late 2011, but the ferry was later discontinued due to commercial disputes. Also in 2011, a handful of refugees returned voluntarily with UNHCR assistance from other countries of asylum, specifically Malaysia, Georgia and St. Lucia. In addition, some 634 refugees, who returned on their own, registered with UNHCR field offices in 2011.
The interest of Sri Lankan refugees in voluntarily repatriating continued to decline in 2012, with fewer than 1300 individuals returning to the country through UNHCR’s facilitated return program from January to mid December 2012. As in prior years, most refugee returnees came from India, but a small number returned from Malaysia, Hong Kong and Cambodia. In addition, the number of spontaneous refugee returnees who approached UNHCR in field locations has reduced by half compared to 2011.
Vavuniya is the district with the highest number of refugee returns, followed by Trincomalee. In April 2012, four refugee returnees were amongst Tamils arrested in the context of a security operation in Trincomalee, but they were released after a few days.
All returnees under the UNHCR facilitated voluntary repatriation programme undergo a questioning session by Immigration Officials for one to two hours upon arrival, followed by security interviews by the State Intelligence Service (SIS), which can take from 30 minutes to five hours. UNHCR is not permitted to remain in the interview room during this process, but waits for the returnees outside the room. Individuals have been allowed to proceed from the security interviews to their destinations. UNHCR provides return and reintegration assistance, including support with onward transportation from the airport to home areas, a reintegration grant, and on-going protection monitoring post-return.
UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.
In addition, IOM runs in a number of countries an “assisted voluntary return” (AVR) programme primarily intended for stranded migrants, which has been accessed by some Sri Lankan former asylum-seekers whose cases had been rejected in last instance, as well as by some who had abandoned their asylum claims. In 2011, 179 Sri Lankans reportedly returned under the AVR programme, substantially less than the 389 Sri Lankans returning with IOM support in 2010.
Some sources have reported recent cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka. There is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.
The Appellant’s contention is that the Tribunal erred in thinking that the UNHCR repatriation programme was available to him since this was only available for Tamils returning from India. That submission is not consistent with the passage I have just set out which abundantly shows that the repatriation programme was not limited to Tamils in India. The reasoning of the Tribunal, it may be admitted, is a little obscure on this issue because the way in which it discussed the UNHCR repatriation programme was capable both of suggesting that it was limited to Tamils returning from India but also the opposite. At [58] it said this:
All returnees from India under the UNHCR facilitated voluntary repatriation programme undergo a questioning session by Immigration Officials for one to two hours upon arrival, followed by security interviews by the State Intelligence Service (SIS), which can take from 30 minutes to five hours. UNHCR is not permitted to remain in the interview room during this process, but waits for the returnees outside the room. Individuals have been allowed to proceed from the security interviews to their destinations. UNHCR provides return and reintegration assistance, including support with onward transportation from the airport to home areas, a reintegration grant, and on-going protection monitoring post-return.
This was footnoted to the UNCHR Eligibility Guidelines. Paragraph 58 itself does not suggest one way or the other that the program was limited to India—the phrase ‘[a]ll returnees from India’ is not the same as, for instance, ‘only returnees from India’. However, as shown in the extract at [41] above, the UNHCR Eligibility Guidelines show that it was not limited to India. Then at [59] of its reasons the Tribunal said this:
A press release issued by UNHCR in May 2014, states “UNHCR is encouraged by the positive outlook of the Government of Sri Lanka towards the refugee returnees and is ready to extend our fullest cooperation in addressing refugee returnee related matters.” The press release indicates that UNHCR staff meet refugee returnees at the airport and facilitate their immigration, security and customs formalities. In addition, UNHCR in cooperation with the Bank of Ceylon deposits a reintegration grant and monetized NFI assistance intended for initial reintegration, such as purchasing household goods or repairing damaged housing, etc. on returnees’ newly opened bank accounts. All returning refugees are also provided with a transport grant to help them to travel from the airport to their areas of origin in dignity. Once settled, returnees are advised to register with the UNHCR field offices for monitoring and referral purposes. UNHCR refers persons with special needs (e.g. persons with disabilities and elderly persons) to specialized institutions. Similarly, UNHCR refers those in need of legal counselling, civil documentation support, livelihood and education assistance to the relevant government authorities or other organizations that can provide targeted assistance. UNHCR have assisted more than 92,000 Sri Lankan refugee returnees since the inception of its voluntary repatriation programme in 1987. Thus far most refugees have been returning to the Northern District of Mannar, followed by, Vavuniya, and Jaffna in the Northern Province and Trincomalee District in the Eastern Province of Sri Lanka.
This is not expressed to be limited to India either but is footnoted to a UNHCR Sri Lanka press release dated 13 May 2015 and entitled ‘Ministry of Resettlement, Reconstruction and Hindu Affairs and UNHCR welcome Sri Lankan refugee returnees from India’. This does suggest some kind of limitation to India. However, that limitation does not appear in the UNHCR document the Tribunal had referred to and has no basis other than in the title to the press release. There was therefore certainly material from the UNCHR before the Tribunal which suggested that the Appellant would have support in Sri Lanka from the UNHCR regardless of the location from which he was returning. The Tribunal also referred to a program conducted by the International Organisation of Migration which offered Tamil returnees from, inter alia, Australia support. Thus at [61] it said this:
The International Organisation for Migration (IOM) assists and facilitates the voluntary return of Sri Lankans – failed asylum seekers, stranded and irregular migrants – from the European Union, Australia and en route countries. IOM offers a wide range of services including:
•Pre-departure logistical arrangements: information outreach, assistance with travel arrangements, escort assistance to vulnerable returnees and transit support,
•On arrival assistance: airport assistance, onward transportation and medical escort, and
•Reintegration assistance: Training including business development, vocational and on the job, small scale business set up, job placement and referral services.
In addition, the programme also supports community infrastructure development in selected returnee receiving areas.
I therefore do not accept that the Tribunal’s conclusion that there were support services available to the Appellant if he were returned is susceptible to challenge on the basis that the UNHCR program only applied to returnees from India. Accepting that the Tribunal’s reasons tend to confuse, the matter is quite clear when the UNHCR Eligibility Guidelines are read. Judge Barnes reached the same conclusion but her Honour’s reasons were, perhaps understandably, enveloped in some of the confusion which attended the Tribunal’s reasons. Nevertheless, her Honour’s conclusion was correct.
Review Ground 2
This ground 2 in the Federal Circuit Court involved the contention that the Tribunal had failed to consider the integers of his claim concerning potential arrest in Sri Lanka. There were three particulars to this contention. First, the Tribunal had failed to consider his claim that he would be arrested if returned to Sri Lanka for violating the I&E Act. However, this is factually not correct as Judge Barnes pointed out. The Tribunal clearly considered, but rejected, the possibility that the Appellant would be arrested upon disembarkation in Sri Lanka.
The second aspect took issue with the Tribunal’s conclusion at [74] of its reasons that it was unlikely that he would be charged under the I&E Act. The nature of this submission, however, is difficult to follow. The Tribunal undoubtedly made this finding but this aspect of Ground 2 does not set out any basis upon which it might have been erroneous to reason in that way. It reached this conclusion after also having considered information at [53] suggesting that, even if the applicant were arrested and charged, it was only likely to result in fines and not a custodial sentence. I cannot see how it was erroneous—factually or legally—to think that he might be less likely to be charged when the offence was committed when he was eight years old and only because he was travelling with his family. Leaving aside the question of what the age for criminal responsibility might be in Sri Lanka or any contention that, as he was presumably doing what his mother told him as they departed from what was in effect a war zone, he lacked any mens rea, it seems to me that the Tribunal’s observation has a practical edge to it and certainly not one which involves any error.
The third aspect of Review Ground 2 was contained in particular (c), extracted above at [37]. That particular could be read in two ways: either that ‘the findings being communicated to the Attorney General of Sri Lanka’ referred to the fact of his arrest upon arrival, or perhaps the findings of various courts or tribunals in Australia in which he has appeared. Both readings are disposed of by Judge Barnes’ conclusion at [59]: there does not appear to have been any material before the Tribunal concerning what would be put to the Sri Lankan Attorney General, nor was any additional threat of persecution arising from that fact made in the Appellant’s claims. I would prefer to say, instead, that the ground did not appear to allege any form of error.
In any event, I agree with Judge Barnes’ conclusion that the whole of this ground had to fail.
Review Ground 3
This ground was that the Tribunal had relied upon a newspaper article which was adverse to him and had not invited him to comment on it. The article in question appeared in The Hindu on 5 May 2016 and was to the effect that the Prime Minister had announced that it was the policy of the Sri Lankan government to encourage the return of Sri Lankan Tamil refugees living in India by removing legal and other hurdles. Judges Barnes correctly disposed of this contention on the basis that the article was information which was not about the Appellant specifically within the meaning of s 424A(3)(a) of the Act with the consequence that the Tribunal was not obliged to put it to the Appellant by reason of s 424A(1). No error is disclosed by her Honour’s orthodox approach to s 424A.
Issues raised in the Appellant’s post-hearing submissions
At [66]-[78] Judge Barnes then dealt with two further contentions which were made by the Appellant in submissions filed subsequent to the hearing. First, the Appellant submitted that the Tribunal’s conclusion that the Appellant was not at risk of serious or significant harm arising from being visited at the camp by his cousins was ‘pure conjecture’, which her Honour took as a submission that the Tribunal had reasoned illogically or irrationally. However, the Tribunal found on the evidence before it, in detailed reasons, that the Appellant’s claim that the cousins were able to enter the refugee camp on multiple occasions lacked credibility. The Tribunal proceeded to find that even if that claim were assumed in the Appellant’s favour, it was not satisfied that the cousins’ involvement with the LTTE was notorious; and, even if that were incorrect, it was not satisfied that there was a real risk of the Appellant being seriously or significantly harmed as a result. These conclusions were based on the Tribunal’s detailed assessment of the Appellant’s evidence and relevant country information. These conclusions could not be said to have been illogical or irrational in a manner amounting to jurisdictional error.
Secondly, the Appellant claimed that the Tribunal’s finding that he had been involved in protest activities in the refugee camp in India gave rise to a duty to ask itself whether its conclusion of there being no likelihood of consequent harm was wrong. The failure of the Tribunal to do so was then said to have been a failure to consider a substantial, clearly articulated argument in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 or a failure to consider a claim that arose squarely on the material: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1. However, as Judge Barnes pointed out, the Tribunal was not required to ask itself ‘what if I am wrong’ concerning its assessment of the likelihood of the Appellant suffering persecution due to his involvement in the protests. The Tribunal considered the claim and reasoned in a manner which did not involve jurisdictional error.
The s 438 certificate
In October 2014 the Tribunal had been provided with a certificate under s 438 of the Act regarding the disclosure of information in two Departmental folios in the Appellant’s file. The material suggested, on one view, that the Appellant might not be a Sri Lankan because he did not have relatives in Sri Lanka. The Minister accepted at the hearing before Judge Barnes that the certificate was invalidly issued and its existence was not disclosed to the Appellant. This was accepted to be a breach of the procedural fairness obligation articulated in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (‘SZMTA’) at 433 [2] per Bell, Gageler and Keane JJ. However, the information that the Appellant was not a Sri Lankan was rejected by the Tribunal which was explicit in finding in the Appellant’s favour that he was a Sri Lankan. The information that he had no relatives in Sri Lanka was also in his favour because it supported his claim to that effect and added strength to his contention that he would have no means of support if returned. Judge Barnes could see no difficulties flowing from that information being before the Tribunal none of which had any negative impact on the Appellant’s position. Accordingly, the Tribunal’s decision was not affected by jurisdictional error as the breach was not material in the sense that the Appellant was not deprived of the possibility of a successful outcome flowing from its non-disclosure: SZMTA at 433 [3], 443 [38]. I agree.
THE APPEAL TO THIS COURT
On 13 September 2019 the Appellant filed a notice of appeal in this Court which is as follows:
1. That there is a jurisdictional error in the Federal Circuit [Court’s] decision.
2.The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.
3.Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.
Ground 1 does not identify any particular jurisdictional error. I have expressed my agreement with the conclusions of the Federal Circuit Court on each of the jurisdictional errors which were suggested to it. I therefore reject Ground 1.
I treat Ground 2 as a freshly raised rationality ground of review. Leaving aside the question of leave, I do not think that the Tribunal’s decision can be described as illogical or irrational. The critical parts of its reasoning are that (a) the Appellant does not face a serious risk if returned just because he is a Tamil; (b) he will not regarded as having a connection to the LTTE by reason of his cousins because the visits by them he relied upon did not occur; and, (c) although he may be arrested on his return under the I&E Act the most likely outcome is that he will be fined.
I would accept that different conclusions could have been reached on these issues. There is some information which would suggest that the situation for Tamils on return to Sri Lanka is somewhat grimmer than the upbeat reports upon which the Tribunal usually relies. But one cannot say that it is not entitled to rely on those reports. It is the Tribunal’s job to form a view on the political situation in Sri Lanka. Obviously that is a controversial topic but the fact that it is controversial can augment the difficulty attending a submission that the Tribunal’s conclusions are illogical or irrational. So too, I think the Tribunal could have accepted that the visit of the cousins to the camp in 2009 had in fact occurred. But its reasons for rejecting that conclusion are not obviously absurd. It was impressed by the inconsistency involved in the cousins keeping their activities secret, on the one hand, and the Appellant’s account that everyone in the camp knew about them. I might not have been so impressed by that contradiction, but that is not the present question and my views are irrelevant. So too, the Tribunal’s conclusions about what would happen to the Appellant if he were arrested at the airport for an offence under the I&E Act does not involve reasoning from which the reader immediately recoils: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.
In those circumstances, I do not see that an argument based on a lack of rationality or logic is available. I reject Ground 2.
Ground 3 does not raise any argument calling for resolution. However, one such additional ground was articulated at the hearing.
Sur place claims
During the hearing in this Court, the Appellant informed me that whilst in Australia he had made a number of YouTube videos (and had given some television interviews as I understood it) and he was concerned that these might expose him to some risk if he were returned to Sri Lanka. This matter was raised only in reply. I declined an offer by the Appellant to provide me with copies of this material as it is not material to the issues which arise on a judicial review decision of the Tribunal. Nevertheless, it is a material matter because it suggests that the Appellant may have a sur place claim. Not having seen the material I offer no comment on the strength of the claim or the answers which might be made to it were it to be articulated.
ORDERS
I raised with the Minister’s solicitor the fact that this matter appeared to raise the possibility of a sur place claim and that I assumed that before any decision to remove the Appellant were made under s 198 the Minister would consider that matter. I record the fact that the claim was raised before me and that this Court is part of the Commonwealth. What I propose to do in the circumstances is to stand the matter over for case management. At that time, I will hear from the Minister on the administrative steps which have been taken to assess those claims. The only order I will now make is that the proceeding stand over to 1 April 2020 at 9.30 am.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 21 February 2020
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