Cca16 v Minister for Immigration

[2018] FCCA 3127

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3127

Catchwords:

MIGRATION – Application for a remedy under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Independent Assessment Authority (Authority) affirming decision not to grant temporary protection visa – whether Authority failed to consider or properly consider aspect of claim for protection – whether Authority applied real chance test – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 476

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: CCA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2043 of 2016

Judgment of: Judge Manousaridis

Hearing date: 12 October 2017

Date of Last Submission: 5 October 2017

Delivered at: Sydney

Delivered on: 2 November 2018

REPRESENTATION

Counsel for the Applicant: Mr N Kulkarni, by direct access

Solicitors for the Respondents: Ms K Hooper of HWL Ebsworth

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2043 of 2016

CCA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Sri Lanka, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Authority) affirming a decision of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV).

2. The applicant relies on two grounds. The first ground is the Authority overlooked or failed to appreciate an aspect of one of his claims for protection, namely, the “Sinhalisation” of an area over time. The second ground is the Authority failed to apply the “real chance test” when assessing the risk of future harm based on the applicant’s ethnicity.

3. To be in a position to consider these grounds it will be necessary to set out the applicant’s claims for protection, and the Authority’s reasons for affirming the delegate’s decision not to grant the applicant a TPV.

Claims for protection

1. The applicant is a Tamil and a Hindu. He arrived in Australia on 27 August 2012 as an unauthorised maritime arrival.[1] The applicant was detained and underwent a “biodata” interview on 31 August 2012,[2] and, on 28 January 2013, an “Irregular Maritime Arrival Entry Interview” (Entry Interview).[3] On 12 February 2013 the applicant was granted a bridging visa.[4] On 30 August 2013 the applicant lodged an invalid application for a protection visa (PV application),[5] and on 9 October 2015 the applicant lodged a valid application for a TPV.[6]

   [1] CB37, 167

   [2] CB127-129

   [3] CB133-151

   [4] CB167

   [5] CB152-228

   [6] CB19

2. Although the applicant stated his claims on a number of occasions, it would be convenient to begin by setting out the claims the applicant made in a statutory declaration that formed part of the PV application.[7] The applicant there claimed as follows:

   a)The applicant is from Mullaitivu district which, during the civil war, was a stronghold of the Liberation Tigers of Tamil Eelam (LTTE).

   b)The applicant’s brother-in-law was forced to join the LTTE, and he fought the advancing Sri Lankan forces.

   c)The applicant was forced to assist the LTTE to organise several events, such as martyrs day and Pongu Thamil celebrations. He was also forced to assist the LTTE, and he offered to do so by using his boat to transport injured LTTE cadres and civilians to a Red Cross vessel.

   d)After the Sri Lankan Army (SLA) captured the area the applicant and his family were taken to a particular camp (IDP Camp) where the applicant was interrogated and detained by the SLA. The applicant was accused of being in the LTTE, and he was tortured.

   e)The applicant was released in November 2009 and, after temporarily living in a relative’s house, he and his family were resettled on their land. The SLA and Criminal Investigation Division (CID) came to the applicant’s home at night and interrogated him, and on several occasions the applicant was required to report to the camp in Mullaitivu. Each time he reported he was accused of having transported injured LTTE cadres.

   f)Sometime in August or September 2011 CID officers came to the applicant’s home, accused him of planning to leave the country, and took the applicant’s passport. Sometime in June 2012, about one month before the applicant left Sri Lanka, when reporting to the camp, the applicant was told he had to confess he had transported injured LTTE cadres or face serious consequences, such as being sent to a particular prison.

   g)If he is returned to Sri Lanka the applicant faces the risk of being harmed or killed by the authorities who suspect the applicant transported injured LTTE cadres. The applicant also fears harm because he had left Sri Lanka illegally, and fears being harmed by a particular CID officer.

   [7] CB181-184

3. The applicant repeated and expanded the claims in a further statutory declaration that formed part of his application for a TPV.[8] As summarised by the Authority,[9] the applicant there said that he had been detained and tortured by the Sri Lankan security forces because he was suspected of being in the LTTE; that although the applicant never fought or undertook arms training the applicant was forced to assist the LTTE, but the applicant was more involved because he owned a fishing boat and held a valid driver’s licence. The applicant, therefore, was forced to transport the LTTE’s dead and injured cadres across the sea. The applicant claimed his involvement was perceived as a heavy and real involvement in the LTTE’s armed struggle. The applicant also claimed the situation in Sri Lanka is very bleak, where political vengeance and vendettas are perpetrated on Tamils; the government engineered discrimination against Tamils, excluding Tamils from the mainstream of education, employment, and political representations; and measures employed by the Sri Lankan authorities, such as “Lessons Learned and Reconciliation Commission”, and the “Presidential Commission to Investigate into Complaints Regarding Missing Persons” have failed because the measures have been constituted by the majority community who vilify the Tamil community with hatred and prejudice.

   [8] CB54-56

   [9] CB386-388, [8]

4. Before the delegate the applicant made the following additional claims:

   a)At the end of the civil war his brother-in-law who had fought with the LTTE was sent to a rehabilitation camp for a few months but, after his release, had not faced any further trouble at the hands of the Sri Lankan authorities.[10]

   b)On the day before he left Sri Lanka the applicant was asked to report to the SLA. He was there beaten, and the officers asked the applicant to admit he was a member of the LTTE. The applicant was forced at gun point to sign a document, the contents of which he did not understand because it was written in Sinhalese.[11]

   c)Since the civil war Sinhalese persons from other areas of Sri Lanka are permitted to carry out fishing activities in the applicant’s home region, resulting in loss of income for the applicant and other Tamil fishermen in the area. The applicant said this occurs by Sinhalese fishermen coming from other regions into the applicant’s home area in groups of five to ten boats. The Sinhalese own modern advanced fishing equipment which enables them to obtain a better catch than the Tamil fishermen who do not have access to such equipment; and that the government permits Sinhalese, but not the Tamil, fishermen to use 25-30 horsepower engines on their boats.[12]

   [10] CB332, [84]

   [11] CB332, [87]

   [12] CB334, [107]

Authority’s reasons

1. The Authority accepted or found the following:

   a)the applicant lived in LTTE controlled areas in Mullaitivu from 2005 through to the closing stages of the war, and the SLA forced the applicant and his family to move to an IDP camp in 2009;[13]

   [13] CB389, [12]

   b)the LTTE forced the applicant to do work for it, including making funeral arrangements and taking bodies to the cemetery, building bunkers, helping organise celebrations, informing the LTTE if unknown people came to the village, and transporting wounded civilians in his boat to ships of the International Committee of the Red Cross;[14]

   [14] CB391, [21]

   c)although the applicant’s forced labour was similar to that exerted on other civilians in LTTE controlled areas, the applicant’s holding a boat and driver’s licence led to his being forced to do tasks that civilians who did not hold such licences were not forced to do;[15]

   [15] CB391, [21]

   d)the applicant’s brother-in-law was forcibly recruited into the LTTE and fought against the SLA, and after the war he was detained and sent to a rehabilitation camp and subsequently released;[16]

   [16] CB391, [25]

   e)it was plausible the applicant was interrogated and beaten on his first day at the IDP camp, and beaten and questioned on other occasions when in the IDP camp, and that the applicant’s wife was beaten and interrogated on one occasion;[17]

   f)the applicant and his family were released from the IDP camp and, for that reason, the applicant was only of low level interest to the authorities at that time;[18]

   g)after his release the applicant faced restrictions on his movements and that, from November 2009 to April 2010, the applicant had to sign in monthly with the police and was required to report to an SLA camp for questioning;[19]

   h)the applicant was visited at home and subsequently had to report to an SLA camp where he was questioned between November 2010 and August 2012, and it is plausible the applicant was beaten on one or more of those occasions;[20]

   i)based on the applicant’s having been questioned, the Sri Lankan authorities were aware of the work the applicant was forced to perform for the LTTE in the final stages of the war;[21]

   j)country information showed that visits to persons who had been in IDP camps were not uncommon and, for that reason, the applicant remained of only low level interest to the Sri Lankan authorities;[22]

   k)along with many other Tamils in the north and east, the applicant would have faced at that time a level of harassment, including being monitored, stopped, and questioned when going about his daily business, particularly when passing through check points;[23]

   l)in August 2011 the applicant obtained a Sri Lankan passport after paying a bribe and, after having made contact with a people smuggler to leave Sri Lanka, the CID visited the applicant as one of the several visits the CID and the SLA made to the applicant’s home;[24]

   m)the applicant’s family was visited shortly after he departed Sri Lanka;[25]

   n)the applicant was a self-employed fisherman in Mullaitivu for 12 years from 1999 to 2010 and 2010 to 2012; the applicant’s father, his brothers, and his brother-in-law continue to fish in the Mullaitivu area; the applicant faced some restrictions on fishing from the SLA and police and the applicant sometimes had to provide bribes of fish; the applicant and his family faced encroachment from Sinhalese fishermen who are allowed to use more powerful equipment, such as engines, than Tamil fishermen are allowed to use; Sinhalese fishermen are not subject to the military requirements that apply to Tamil fishermen; there have been incidents between Tamil and Sinhalese fishermen, including interfering with Tamil fishermen’s nets and sometimes stopping Tamils from fishing; and that “this ‘Sinhalisation’ of fishing in Mullaitivu has impacted on” the applicant and his family’s livelihood as fishermen.[26]

   [17] CB393, [32]

   [18] CB393, [33]

   [19] CB393, [36]

   [20] CB396, [45]

   [21] CB396, [45]

   [22] CB396, [45]

   [23] CB396, [46]

   [24] CB396,[47]

   [25] CB307, [50]

   [26] CB398, [54]

2. The Authority did not accept:

   a)the applicant transported wounded LTTE cadres;[27]

   b)the officer from the CID who visited the applicant in August or September 2011 warned the applicant against the applicant leaving Sri Lanka;[28] and

   c)the applicant was forced to sign a letter in Sinhalese.[29]

   [27] CB391, [22]

   [28] CB396, [47]

   [29] CB397, [48]

3. Having made findings, the Authority assessed whether the applicant was a “refugee” within the meaning of s.5H of the Act. It was not satisfied the applicant has a well-founded fear of persecution because the applicant is a male Tamil who lived in LTTE controlled areas, who had been forced to do work for the LTTE, including transporting wounded civilians in his boat, and whose brother-in-law was a former LTTE combatant.[30] The Authority relied on country information to the effect that a Tamil’s having resided in an LTTE controlled area does not in itself give rise to the need for protection.[31] The Authority also relied on its finding that the applicant was of low level interest to the Sri Lankan authorities. That finding, in turn, was based on the applicant and his family having been released from the IDP camp,[32] the Sri Lankan authorities were aware of the applicant’s and his brother-in-law’s involvement with the LTTE, and the brother-in-law received little, if any, attention from the authorities after he was released.[33]

   [30] CB401, [69]

   [31] CB400, [67]

   [32] CB393, [33]

   [33] CB401, [68]

4. The Authority was also not satisfied the applicant has a well-founded fear of persecution because he is a Tamil fisherman from Mullaitivu in the north of Sri Lanka.[34] The Authority relied on the following matters:

   a)The electoral victory of Maithripala Sirisena on 8 January 2015 and the results of peaceful parliamentary elections on 17 August 2015 resulting in a “national unity government” and the Tamil National Alliance (TNA) leading the opposition.[35]

   b)The introduction in 2012 of the Trilingual Policy overseen by an Official Languages Commission which provides that all people have the right to communicate in Sinhala, Tamil, or English.[36]

   c)The Sirisena government has a more proactive approach to human rights and reconciliation than the previous government. Since January 2015 the new government has replaced military governors in the Northern and eastern Provinces with civilians, reduced High Security Zones, released land held by the military, released individuals held under the “PTA” (being the Prevention of Terrorism Act 1978), engaged constructively with the TNA and the United nations, and established the Office of National Unity and Reconciliation.[37]

   d)The Department of Foreign Affairs and Trade assessed that the monitoring and harassment of Tamils has decreased under the Sirisena government, and on a day-to-day basis the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by the authorities if it occurs.[38]

   e)Although the Authority accepted the applicant will face the same situation of “Sinhalisation” of fishing around Mullaitivu, that “Sinhalisation” is discriminatory and systematic conduct, and that that has impacted, and may in the future impact on the applicant’s ability to earn a living, the evidence showed that the applicant, his brothers, and his brother-in-law all continued to fish throughout the period of “Sinhalisation”, and there was enough fishing available for the applicant to offer the use of his fishing boat to his sister in approximately December 2015.[39]

   [34] CB403, [78]

   [35] CB401, [70]

   [36] CB401, [71]

   [37] CB401, [72]

   [38] CB402, [74]

   [39] CB402, [76]

5. Finally, the Authority was not satisfied the applicant has a well-founded fear of persecution because he is a failed Tamil asylum seeker who departed Sri Lanka illegally,[40] and was satisfied there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.[41] Given the limited nature of the grounds on which the applicant relies, it is not necessary to set out the Authority’s reasons on which it relied for these findings.

   [40] CB405, [95]

   [41] CB407, [105]

Ground 1

1. The applicant relies on two grounds contained in his amended application. The first ground is as follows:

   The applicant claimed “that his ability to subsist as a fisherman has been affected by the Sinhalisation process” in the north of Sri Lanka. The Immigration Assessment Authority (“the IAA”) accepted that “Sinhalisation of fishing around Mullaitivu was occurring, but found that the Sinhalisation would not “threaten the applicant’s capacity to subsist or otherwise constitute serious harm”, and that the applicant would not face a real chance of persecution now or in the reasonably foreseeable future on the basis that he is a Tamil fisherman. In making these findings, the IAA overlooked or failed to appreciate that Sinhalisation is a process by which “Sinhalisation” of an area increases over time. The IAA thereby fell into jurisdictional error in making these findings.

2. In his counsel’s written submissions the applicant submits that, on the Authority’s findings, Sinhalisation of fishing around Mullaitivu was not a one-off event, but is a process that takes place or continues, and continues to this day.[42] The applicant submits, however, that the Authority, although it used all three tenses when referring to Sinhalisation, “overlooked or failed to appreciate that Sinhalisation is a process by which “Sinhalisation” of an area increases over time”.[43] After noting the Authority referred to country information to the effect that in 2012 approximately 20% of fishing registrations in southern Mullaitivu area by returning Sinhalese fishermen, the applicant submitted it is “likely” that “the percentage of fishing registrations held by returning Sinhalese fishermen in 2017 is greater than in 2012”, and that the “extent of Sinhalisation in the reasonably foreseeable future will worsen”.[44]

   [42] Outline of Submissions for Applicant, [21]

   [43] Outline of Submissions for Applicant, [22]

   [44] Outline of Submissions for Applicant, [22]

3. It is important to appreciate that the applicant does not claim the Authority failed to consider the future risk of harm to the applicant; the applicant acknowledges the Authority referred to “the future”[45] and to “the reasonably foreseeable future”.[46] What the applicant submits is that, when looking into the reasonably foreseeable future, the Authority overlooked or failed to appreciate that “Sinhalisation is a process by which “Sinhalisation” of an area increased over time”.[47] In effect, the applicant submits the Authority overlooked or failed to consider properly a claim that was before it; and that claim was that Sinhalisation was occurring in Sri Lanka, and that it was an ongoing and expanding process.

   [45] CB402, [76] where the Authority said that it accepted “that this ‘Sinhalisation’ . . . may, in the future, impact on the applicant’s capacity to earn a living” (emphasis added).

   [46] CB403, [78]

   [47] Outline of Submissions for Applicant,[23]

4. The principles relevant to determining whether a claim is before a Tribunal are well established; and it will be sufficient if I only refer to two authorities. The first is NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[48] where the Full Federal Court said:

   a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.

   b)The Tribunal must “deal with the case raised by the material and evidence before it”, and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.

   c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”. On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.

   [48] [2004] FCAFC 263

1. The second authority is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim which was not expressly made may nevertheless be considered to have been raised [49]

   From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

   [49] [2004] FCA 1695, at [15]

2. The question that arises, therefore, is whether there arose tolerably clearly from the material before the Authority a claim that Sinhalisation is a process by which Sinhalisation of an area increased and would continue to increase over time.

3. The starting point is the delegate’s decision, which records the applicant having claimed before the delegate that since the end of the civil war Sinhalese persons from other areas of Sri Lanka are permitted to carry out fishing activities in the applicant’s home area.[50] When dealing with that claim, the delegate referred to reports that indicated “that in the name of keeping the security tight in the former war zones, the government of Sri Lanka “is systematically Sinhalising” areas in the north and east of the country”;[51] and the delegate described what “Sinhalisation” denoted:[52]

   The almost entirely Tamil-speaking north is now dotted with Sinhalese signboards, streets newly renamed in Sinhala, monuments to Sinhala war heroes, and even a war museum and battlefields that are open only to Sinhalese. The slow but steady movement of Sinhala settlers along the southern edges of the province, often with military and central government support and sometimes onto land previously farmed or occupied by Tamils has been a concern to the residents of the province.

   Reports indicate that in an ethnically-charged context, the Tamil people perceive the construction of Buddhist temples, the presence of the Sri Lankan armed forces in large numbers, the devaluation of the Tamil language, culture and Hindu religion and the re-naming of villages in Sinhalese as a deliberate attempt to alter the demographic nature of the country. These findings fit with an analysis of the former Sri Lankan government’s leaning towards a Sinhalese Buddhist ‘theocracy’.

   [50] CB334, [106]

   [51] CB335, [108]

   [52] 335, [108], [109]

4. The delegate concluded that in light of this information it was plausible that, as a self-employed fisherman, the applicant may have been affected by the “Sinhalisation” process occurring in the country.[53]

   [53] CB335, [110]

5. Next there is the Authority’s use of the word “Sinhalisation”. It first uses the word in that section of its reasons where it considers the claim the applicant first made in his bio-data interview that Sinhalese people are fishing illegally and taking “our livelihood”.[54] The Authority set out what the applicant said about that claim at the Entry Interview,[55] and before the delegate.[56] The Authority then referred to country information as follows:[57]

   Country information suggests that the Rajapaksa government was involved in the ‘Sinhalisation’ of the Tamil north of Sri Lanka, including centralised political decision making, erecting military monuments, erecting Buddha statutes [sic] Sinhalese economic bias and encouraging Sinhalese fishing. Country information indicates Tamil fishermen in Mullaitivu are being encroached on by Indian and southern Sinhalese fishermen using fishing practices that are not allowed; they damage the Tamil fishermen’s nets; they are not required to register like the Tamil fishermen with the SLA; lack of proper civil administration allows these things to happen and the small Tamil fishermen were suffering; approximately 20% of fishing registrations in southern Mullaitivu are held by returning Sinhalese fishermen; there have been conflicts between the returning and local fishermen; and the SLA have been trying to settle the disputes.

   [54] CB397, [51]

   [55] CB397, [51]

   [56] CB397-398, [52]

   [57] CB398, [53]

6. The Authority then made a number of findings which included the following:[58]

   Based on the country information, I accept the applicant and his fishing family faced encroachment from Sinhalese fisherman [sic]; the Sinhalese are allowed to use equipment, such as more powerful engines and lights, that Tamil fishermen are not; Sinhalese fishermen are not subject to the military registration requirements that apply to Tamil fishermen; and there have been incidents between Sinhalese and Tamil fishermen, including interfering with Tamil fishermen’s nets and sometimes stopping Tamils from fishing. I accept the applicant’s claim that this ‘Sinhalisation’ of fishing in Mullaitivu of fishing has impacted on his and his family’s livelihood as fishermen.

   [58] CB398, [54]

7. There are a number of matters to note. First, the word “Sinhalisation” first appears in the delegate’s reasons for decision; and it appears to have been taken from country information published in September 2012.[59] Second, as used by the delegate and, at least to a large extent by the Authority, “Sinhalisation” denotes a policy associated with the former government of Sri Lanka. Third, “Sinhalisation” denotes a process that was much broader than simply encouraging Sinhalese fishermen to encroach on the activities of Tamil Fishermen. Fourth, the delegate[60] and the Authority[61] referred to country information about the state of Tamils and government policy in relation to Tamils after 2012. The country information does not refer to Sinhalisation but, on the contrary, refers to various events and measures that are intended to protect the rights or interests of Tamils. Fifth, the Authority itself uses the expression “this ‘Sinhalisation’ of fishing in Mullaitivu”.[62] On a fair reading of its reasons, the Authority uses that expression to refer to the encroachment by Sinhalese fishermen on the activities of the Tamil fishermen in Mullaitivu brought about by particular laws, policies, and events which the Authority identifies. These are Sinhalese fishermen being allowed to use equipment that Tamil fishermen are not allowed to use; Tamil fishermen, but not Sinhalese fishermen, being subject to military registration requirements; and incidents between Sinhalese and Tamil fishermen, including interference with Tamil fishermen’s nets and sometimes stopping Tamils from fishing.

   [59] CB335, [108]. The country information is identified in footnote 50 as “CX309024: ‘Systematic Sinhalisation in North – Tamil politicians’, Journalists for Democracy in Sri Lanka, 14 September 2012”

   [60] CB338-341, [128]-[141]

   [61] CB401-402, [70]-[77]. I have summarised some of the country information in paragraph 11 of these reasons.

   [62] CB398, [54]

8. In these circumstances I accept there arose tolerably clearly from the material before the Authority claims to the effect that in the past Sinhalese fishermen had encroached on the activities of Tamil fisherman in Mullaitivu; this encroachment was, or was in part, the result of the Rajapaska government’s policy of “Sinhalisation”; and that the laws or policies or activities by which that encroachment occurred - Sinhalese fishermen being allowed to use equipment that Tamil fishermen are not allowed to use; Tamil fishermen, but not Sinhalese fishermen, being subject to military registration requirements; and incidents between Sinhalese and Tamil fishermen, including interference with Tamil fishermen’s nets and sometimes stopping Tamils from fishing – are still on foot or continue to occur. I do not accept, however, that there arose tolerably clearly from the material before the Authority a claim to the effect there was a real chance that in the reasonably foreseeable future what the Authority described as “this ‘Sinhalisation’ of fishing in Mullaitivu” would expand, or that there was a real chance that the level of encroachment on the activities of Tamil fishermen as a consequence of “this ‘Sinhalisation’ of fishing in Mullaitivu” would increase.

9. First, there was nothing to suggest that after the defeat of the Rajapaska government in January 2015 the Sri Lankan government pursued or intended to pursue any general policy of Sinhalisation. The country information to which the Authority referred showed that the current government has pursued policies that are intended to protect the rights and interests of Tamils. Second, there was no material before the Authority that could reasonably have suggested there was a real chance that the laws, policies, or activities which the Authority found constituted “this ‘Sinhalisation’ of fishing in Mullaitivu”, and by which the Sinhalese fishermen encroached and continue to encroach on the activities of Tamil fishermen in Mullaitivu, operate or may reasonably have been taken to operate to lead to an increased level of encroachment on the activities of Tamil fishermen in the reasonably foreseeable future.

10. The only basis on which counsel for the applicant submitted there was a claim before the Authority that the encroachment on the activities of Tamil fishermen in Mullaitivu that had occurred in the past would increase into the future is the word “Sinhalisation” itself; it suggests an ongoing process. That, however, rests on an assumption that the persistence of what the Authority identified as  “this ‘Sinhalisation’ of fishing in Mullaitivu” – Sinhalese fishermen being allowed to use equipment that Tamil fishermen are not allowed to use; Tamil fishermen, but not Sinhalese fishermen, being subject to military registration requirements; and incidents between Sinhalese and Tamil fishermen, including interference with Tamil fishermen’s nets and sometimes stopping Tamils from fishing – necessarily leads to an increased level of encroachment on the activities of Tamil fishermen. There is no warrant for that assumption. Whether or not the persistence of “this ‘Sinhalisation’ of fishing in Mullaitivu” was such as could reasonably have been considered by the Authority to give rise to a real chance in the reasonably foreseeable future of an increased encroachment on the activities of Tamil fishermen in Mullaitivu is a question that could only have been answered by reference to the material the was before the Authority. As I have already concluded, there was no material before the Authority that could reasonably have suggested there was a real chance in the reasonably foreseeable future of increased encroachment on the activities of Tamil fishermen in Mullaitivu.

11. For these reasons, therefore, ground 1 fails.

Ground 2

1. Ground 2 is as follows:

   The country information before the IAA indicated that Tamils faced significant harassment, monitoring and discrimination in Sri Lanka at least up until the end of the civil war, but that the harassment, monitoring and discrimination for Tamils had eased or decreased since then. However, the fact that monitoring and harassment of Tamils has eased or decreased does not, without more, mean that Tamils do not face a real chance of persecution. The IAA reasoned that, because the monitoring and harassment has eased or decreased, the applicant’s fear of persecution was not well-founded. This reasoning process involves an error in applying the real chance test, which is a jurisdictional error.

2. The ground claims the Authority reasoned that, because the monitoring and harassment of Tamils has eased or decreased, the applicant’s fear of persecution was not well-founded. That is not an accurate representation of how the Authority reasoned. As my summary of its reasons shows, the Authority considered a number of matters when assessing whether the applicant has a well-founded fear of persecution on the ground that he is a Tamil fisherman from Mullaitivu in the north of Sri Lanka. These matters were the election of Maithripala Sirisena as Prime Minister, the holding of peaceful parliamentary elections resulting in the TNA formally leading the opposition, the introduction of the Trilingual Policy in 2012, the absence of any official laws or policies that discriminate on the basis of ethnicity or language, the more pro-active approach of the Sirisena government to human rights and reconciliation, the replacement of military governors in the Northern and Eastern Provinces with civilians, the reduction of the number of High Security Zones, the release of land held by the SLA and persons held under the PTA, the cessation of forced registrations of Tamils, and a decrease in the monitoring and harassing of Tamils. For this reason alone, ground 2 fails.

3. In his oral address counsel for the applicant submitted that the Authority only considered whether the conditions for the Tamils in the Northern and Eastern Provinces had improved without considering whether the Tamils in those areas had a well-founded fear of persecution either before or after the improvement. I do not accept that this is a fair representation of how the Authority reasoned. As the Minister submitted, the Authority concluded it was not satisfied there was a “real chance” of the applicant suffering real harm;[63] and the Authority ended its assessment of the applicant’s claim based on his being a Tamil fisherman from Mullaitivu in the north of Sri Lanka by concluding it was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future on that basis. All this indicates that the Authority not only was aware and correctly understood the “real chance test”, but that it attempted to and correctly did apply that test to the claims the applicant made.

   [63] First Respondent’s Outline of Sbumissions [14]

4. Ground 2, therefore, also fails.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.

2. I will deal with the question of costs at the time I pronounce my order dismissing the application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  2 November 2018