CKL16 v Minister for Immigration
[2019] FCCA 2184
•15 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKL16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2184 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – Safe Haven Enterprise visa – citizen of Sri Lanka – unauthorised maritime arrival – whether constructive failure to exercise jurisdiction or denial of procedural fairness by mischaracterising claim – whether excess of jurisdiction or failure to take into account a relevant consideration where alleged dispositive finding of fact without foundation or speculative – whether constructive failure to exercise jurisdiction because of mechanistic and non-cumulative approach to complementary protection claim – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 |
| Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 |
| Applicant: | CKL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 398 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr MGS Crowley |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr PJ Hannan |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed 30 August 2016, as amended on 16 November 2016, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 398 of 2016
| CKL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 30 August 2016 the applicant filed an application for judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) made on 2 August 2016. The IAA Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”). The IAA Decision is in the Court Book (“CB”) at 271-286.
Background
The background to the IAA Decision is as follows:
a)the applicant, a Sri Lankan citizen, arrived in Australia on 5 November 2012 as an unauthorised maritime arrival: CB 41;
b)on 21 December 2015, the Minister “lifted the bar” pursuant to s.46A of the Migration Act and invited the applicant to apply for a SHEV: CB 16-17;
c)on 18 January 2016, the applicant applied for a SHEV raising the following claims:
i)the applicant fears harm because of his age, race, where he is from (a town in the north east of Sri Lanka) and as he has had problems with the Sri Lankan authorities, including the police and Criminal Investigation Department (“CID”), the army and the Terrorist Investigation Department (“TID”): CB 61;
ii)in 2005 students in northern Sri Lanka conducted several protests against the Sri Lankan government and the applicant participated in three of these protests. Each protest had around 5000 students protesting for freedom, protesting against the Sri Lankan forces for brutality, and protesting for the removal of the army presence. The applicant, during these protests, burned tyres and threw stones while, in turn, the army would open fire: CB 61;
iii)two protests were held at a Hindu College in northern Sri Lanka and one in front of the applicant’s school, and many students, including the applicant, were rounded up during the protests, and those from the applicant’s home town were subjected to more vigorous interrogation: CB 61;
iv)in December 2005 there was an explosion at a road junction near the applicant’s house, which resulted in the death of approximately 15 army personnel and the police “were checking everyone”. As the applicant was returning from school at about 2pm, the police caught the applicant and took him to a police station where he was detained and interrogated. During the interrogation the police hit him and accused him of working for the Liberation Tigers of Tamil Eelam (“LTTE”) and for being involved with the attack, despite him telling them that he was studying in high school, and it was only when his father sought help from a government officer to sign for his release at 1.00am that he was he able to leave: CB 61;
v)while the applicant was meant to be taking his exams in 2006 he studied at home because he was afraid he would be arrested again, and when he completed the exams he moved to Colombo as he was afraid to stay in northern Sri Lanka. In Colombo he had to register with the police and was issued with a police report/ID containing his details, and he is aware the police monitor the number of Tamils coming to Colombo because Colombo was prone to LTTE attacks, and the police conduct random surprise house searches of Tamils from the North East province of Sri Lanka: CB 62;
vi)the Singhalese students in the hostel where the applicant stayed while studying in Colombo always looked at him suspiciously. He had the feeling that he was always being watched and they may have made several reports about the applicant to the police as he could see how they looked and behaved towards him as if he were their enemy because of the bombs and human suicide bomb blasts that killed many Singhalese civilians: CB 62;
vii)in November 2007 the applicant was kidnapped by a white van when he was returning to his hostel unit, he was blindfolded and kept for three days not knowing where he was as it was dark with only some dimmed light and he could only see the interrogator in front of him but there were another 2-3 people, likely CID and TID, who would hit him whenever he answered to questions about links with the LTTE. They were accusing him of working for the LTTE, and used an iron rod to burn his left hand and left leg near his thigh, tied him upside down and started hitting him, made him lie flat on a table and hit the sole of his foot, and gave him little food and drink, and would offer water only to snatch it away and ask him to tell the truth, and when they finally released him they just left him at Colombo harbour: CB 63;
viii)in December 2007 the CID or TID called the applicant’s mobile and asked him to attend the army headquarters in Colombo where he was kept for three hours, interrogated about his links with the LTTE and continually asked why he came to Colombo: CB 63;
ix)in February 2008 the applicant received another call to attend a police station in suburban Colombo where he was interrogated for one and a half hours about his links with the LTTE, and again in June 2008, after another attack by the LTTE, the authorities caught him and took him to another suburban Colombo police station where they kept him for three hours, hit him and accused him of being involved in the attack: CB 63;
x)in December 2008 the TID issued a “Message Form” asking the applicant to again go to the same army headquarters he had gone to before, and where he was tortured, slapped, punched and kicked, as well as whipped with a rope while also threatening to use a plyer to pull off his nails, placing his palm on the table and hitting a hammer around his palm, and accusing him of being responsible for the attacks that were happening in Colombo: CB 63;
xi)in January 2009 the applicant was called twice to a suburban Colombo police station, and was interrogated on his whereabouts whenever there was a bomb blast near his area in Colombo, though the applicant conceded between May 2009 and January 2012 he had some “peaceful time” and was not asked to attend any police station or abducted: CB 63;
xii)in June 2012 the applicant received a call to go to the army headquarters building again, where he was interrogated by the TID wanting to know whether he had any connection with any of the remaining LTTE members or supporters in Sri Lanka and overseas, and the personnel pointed a gun at his temple and said the next time they called him there will no longer be an interrogation and he will be shot: CB 63; and
xiii)if the applicant returns to Sri Lanka he will be arrested, detained and interrogated to find out the reason he escaped from Sri Lanka. Even if he is not arrested and detained at the airport, the police will call him for an interrogation at a later date where he will be detained and interrogated: CB 63;
d)on 12 May 2016 an interview between the applicant and the Delegate was conducted at which the applicant’s migration agent was present (“SHEV Interview”): CB 102 and CB 191-192;
e)on 29 June 2016 the Delegate’s Decision was to refuse the applicant a SHEV: CB 203-223, and on 1 July 2016, the Delegate’s Decision was referred to the IAA for review pursuant to s.473CA of the Migration Act: CB 225;
f)on 25 July 2016, the applicant’s migration agent made a written submission to the IAA: CB 249-261; and
g)on 2 August 2016, the IAA Decision affirmed the Delegate’s Decision: CB 267-286.
IAA Decision
In the IAA Decision the IAA:
a)noted the following with respect to the information before it:
i)that it had had regard to the material referred to it pursuant to s.473CB of the Migration Act: CB 272 at [4];
ii)on 25 July 2016 the IAA received a submission from the applicant’s representative and to the extent the submission discusses evidence, including country information, which was before the Delegate, and responded to the Delegate’s Decision based on that material, the IAA considered this did not constitute “new information” and had regard to it: CB 272 at [5];
iii)to the extent other country information reports that were not before the Delegate were included in the written submissions of the applicant’s representative, the IAA rejected that special circumstances existed for considering this new information as it was not satisfied that the country information (which predated the date of the Delegate’s Decision and the SHEV Interview) could not have been provided to the Delegate before the decision, nor was it satisfied it was credible personal information: CB 272 at [6]-[7]; and
iv)accepted that the applicant may have validly assumed that the Delegate would have regard to the most recent version of the United Kingdom Home Office’s 2016 Country Information report when undertaking the assessment, and as such was satisfied that the report was not, and could not have been, provided to the Delegate before the decision was made and that there were exceptional circumstances that justified considering it: CB 272 at [8];
b)summarised the applicant’s claims for protection: CB 273 at [9];
c)referred to country information and accepted the applicant was subject to the incidents of serious harm from the Sri Lankan authorities between 2005 and 2009 as claimed: CB 273-274 at [11]-[16];
d)accepted that the applicant had no adverse attention from the authorities from May 2009 to 2012 based on the country information referring to the end of the civil war in Sri Lanka at that time: CB 274 at [18];
e)accepted the applicant’s consistent evidence that he reported to the army headquarters building in June 2012, was questioned about connections to LTTE supporters or members in Sri Lanka and overseas, had a gun pointed at his temple and received a death threat. It accepted, in the absence of information to the contrary, that his family have not been questioned or contacted by the Sri Lankan authorities about the applicant since his departure in August 2012: CB 275-276 at [24]-[25];
f)noted that the applicant cannot be expected to explain the actions of the security authorities, however in the absence of any discernible reason for the “one-off revival” of interest in him in 2012 which did not appear to be connected to any actual activities in which he engaged, knowledge that he possessed, or any relevant external events, the IAA was not satisfied that there is a real chance that he would be of further ongoing interest in the future, particularly given that there had been no further attempt to contact or locate the applicant during the two months that he remained in Sri Lanka after the incident. Further, the applicant did not claim that the authorities had made any inquiries about him in the almost four years that he has been outside of Sri Lanka: CB 276 at [29];
g)was not satisfied that the applicant was of any ongoing adverse interest to the authorities at the time of the 2012 interrogation, or at the time of his departure or subsequently, nor that the authorities would have had any further interest in the applicant had he remained in Sri Lanka, or that he is the subject of any outstanding investigation that might cause him to be identified on return: CB 276 at [30];
h)referred to the relevant legal provisions in relation to when a person might be found to be a refugee and when a person might have a “well-founded fear of persecution” under ss.5H(1) and 5J respectively of the Migration Act: CB 277 at [32]-[33];
i)detailed country information (including the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, dated 21 December 2012 (“2012 UNHCR Guidelines”), the Department of Foreign Affairs and Trade (“DFAT”) “DFAT Country Information Report Sri Lanka”, dated 18 December 2015 (“2015 DFAT Report”), and the UK Home Office (“UKHO”) “Country Information and Guidance. Sri Lanka. Tamil separatism. Version 20”, dated 19 May 2016 (“2016 UKHO Report”)) specific to the applicant’s claims of harm in Sri Lanka: CB 277-278 at [34]-[37];
j)found that as the applicant had neither a real link, nor a perceived link, to the LTTE, and on his own consistent evidence that neither he nor his family had any connection with the LTTE, and notwithstanding that the applicant had in the past been mistreated by the Sri Lankan authorities and accused of LTTE involvement, was satisfied that the applicant will not face a real chance of persecution from the Sri Lankan authorities due to any imputed political opinion on return to Sri Lanka now or in the reasonably foreseeable future: CB 279 at [39]-[40];
k)accepted that even though the applicant was able to leave lawfully via Colombo airport in August 2012 without hindrance, he may be considered a failed asylum seeker on his return, and an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport through subsequent arrest and mistreatment. However, the IAA found that as the applicant does not have any actual or perceived links to the LTTE, and taking into account country information, it did not accept that the applicant will be taken to have any perceived or actual LTTE connections when scrutinised on arrival in Sri Lanka as a failed Tamil asylum seeker, and was not satisfied that the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker from Australia, now or in the reasonably foreseeable future: CB 279 at [46]-[47];
l)based on country information, was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future on the basis that he is a Tamil male: CB 281 at [48]-[51];
m)accepted that the applicant may be subjected to questioning by the authorities on his arrival at the airport in Sri Lanka in order to determine his identity and whether there are any outstanding criminal matters he was charged with, however, was not satisfied there is a real risk the applicant will face significant harm during questioning in the airport re-entry process: CB 282 at [57];
n)did not accept that there is a real risk that the applicant would be subjected to cruel, inhuman or degrading treatment or punishment, intentionally inflicted in relation to the reasons for which he claims to fear harm, or as a result of any discrimination he might suffer as a Tamil, and was not satisfied that there is a real risk that the applicant will be subject to discrimination amounting to significant harm based on his Tamil ethnicity: CB 282 at [58]; and
o)affirmed the Delegate’s Decision not to grant the applicant a SHEV.
Jurisdictional error required
The IAA Decision may be liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IAA may involve jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the powers given to the IAA under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The IAA Decision may also be tainted by jurisdictional error where:
a)there is a denial of the procedural fairness expressly required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; and
b)its findings are legally unreasonable, or lack an evident or intelligible justification: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181.
Consideration
At hearing, the applicant indicated grounds 1 and 3 of the Amended Judicial Review Application overlap significantly and could be dealt with “compendiously”. For that reason, the Court will deal with and address grounds 1 and 3 together, and address grounds 2 and 4 independently.
Grounds 1 and 3
Ground 1 alleges jurisdictional error by the IAA in:
Mischaracterising the claim advanced by the Applicant as having an imputed political sympathy toward the Liberation Tigers of Tamil Elam (LTTE) by virtue of being a male Tamil from a formerly LTTE-controlled area of Sri Lanka, thereby constructively failing to exercise jurisdiction, alternatively denying procedural fairness;
Ground 3 alleges the IAA fell into error in:
Effectively substituting the statutory test of whether the Applicant had a ‘well-founded fear of persecution’ with a test requiring the Applicant to demonstrate he had a particular ‘profile’ with the Sri Lankan authorities as described by United Nations High Commissioner for Refugees’ Eligibility Guidelines and other country information so referenced, thereby asking itself the wrong question;
Applicant’s submissions
In respect of grounds 1 and 3 the applicant submitted that:
a)the IAA looked through “too-broad a lens” and in doing so overlooked and did not focus upon the importance and role of the factual claims in fact advanced by the applicant and accepted by the IAA;
b)put alternatively, the IAA’s reasoning was distorted by an overly abstracted “pre-fabricated” setting of what might attract the Sri Lankan authorities’ interest, informed by the 2015 DFAT Report, as adopted from the 2012 UNHCR Guidelines, by reference to conformity with a particular “profile”;
c)the end-point of the IAA’s “pre-fabricated” model setting was that a person who satisfied the designated “profile” might be regarded as a person upon whom suspicion is known to have fastened and the corollary was that a person who did not satisfy the “profile” would not be regarded as such a person;
d)the starting point of the enquiry on the accepted facts ought to have been that, because the applicant’s factual claims were all accepted, the applicant is a person upon whom suspicion, whether correctly or not, had actually fastened, and who had been serially detained and tortured, personally accused of specific terrorist activities in Colombo and threatened with murder;
e)under the heading “Imputed political opinion (LTTE supporter)”, the IAA exposes its reasoning process as follows:
i)at CB 277-278 at [34], it tested the applicant’s claim against the “more elaborate links” profile found at Part 11.A.1 of the 2012 UNHCR Guidelines, qualified with an observation that:
However, originating from an area that was previously controlled by the LTTE does not in itself do so;
ii)at CB 278 at [35], the IAA omits from its analysis the 2012 UNHCR Guidelines’ express qualification to the “more elaborate links” profile template that it is “not necessarily exhaustive” and that “a claim should not automatically be considered as without merit simply because it does not fall within any of the profiles identified”;
iii)all references at CB 378 at [36] to the original DFAT Report expressly deal with “high-profile former LTTE members” or “low profile former LTTE members” and discrimination against former LTTE members upon release as suspected government informants;
iv)at CB 278 at [36] for former LTTE operatives, the country information did provide a foundation for dismissing the risk of serious harm as remote, although it would have been open to find it was diminished; and
v)at CB 279 at [38] the IAA accepted the applicant’s submission that it was not only persons with real links to the LTTE that were at risk of harm, yet beyond the reference at CB 279 at [39] to the applicant being “mistreated in the past, and accused of LTTE involvement”, there is no attempt to reconcile the applicant’s claims to have been serially detained, tortured, accused of involvement in various bombings, and threatened with murder, with the country information;
f)no reasonable decision-maker could have in those circumstances found such a person to have had neither a real nor a perceived link to the LTTE, without a meaningful analysis of how the status quo has or could have changed in respect of this applicant;
g)it should be inferred the IAA did not grapple with the claims actually put to the IAA that the applicant was a person who had been serially detained, tortured, accused of multiple specific bombing attacks, and ultimately threatened with extra-judicial killing;
h)the country information cited was apt to distinguish between generalised claims of imputed LTTE association by young Tamil males from former LTTE-controlled areas on the one hand, and claims to persons with “real links” to the LTTE on the other, yet the applicant’s claim was neither. However, the IAA treated it, in substance, as the former because the IAA approached its task formulaically, without giving proper, genuine, or realistic consideration to the claims in fact advanced and accepted;
i)the IAA applied a highly generalised abstracted profile model which was apt to evaluate claims of historical serious harm, but on the particular facts as found by the IAA in this case, was not apt to evaluate the risk of future harm of someone upon whom suspicion of LTTE links and terrorist activities had actually fastened;
j)the danger is that the IAA has used this “profile formula” as a de-facto test that has obscured the real issue, and it is clear that the IAA’s reasons for decision demonstrate that a “profile” test was in substance substituted for the statutory test of “well-founded fear of persecution”, and this constituted a constructive failure to exercise jurisdiction;
k)simply put, what was substituted for the statutory test of well-founded fear of serious harm was a test of whether or not the applicant fell within a category of the 2012 UNHCR Guidelines profiles; and
l)there was something special about this young man in the eyes of the Sri Lankan authorities and the problem was he did not fall into any of the profiles of the 2012 UNHCR Guidelines, but nevertheless was of interest as four years of arrests, a kidnapping, torture and a threat of murder evince. That being the case, it was not rational, it was not logical and it was improper for the IAA to reason that going forward, because the applicant did not fall into the particular profile, he would not face any future risk.
Minister’s submissions
In respect of grounds 1 and 3 the Minister submitted that:
a)ground 1 does not plead how the IAA mischaracterised the claim or how the claim should have been characterised and for that reason alone, ground 1 should be rejected as no more than a “bald assertion”;
b)the IAA responded to the case as put by the applicant’s migration agent, and in any event, while the Court may disagree, based upon the submissions the applicant’s migration agent made, the findings of the IAA were logical and open to it to make;
c)there was no reason why the 2012 UNHCR Guidelines cannot or even should not be used for the purposes of the forward-looking function, particularly where it is necessary to have a look at past mistreatment;
d)the IAA was well aware of the statutory test for a well-founded fear of persecution and in an entirely orthodox manner, had regard to relevant country information and the 2012 UNHCR Guidelines in determining whether the applicant had established as a matter of fact that he had a well-founded fear of persecution; and
e)the IAA used the 2012 UNHCR Guidelines and the 2015 DFAT Report, as part of the fact-finding exercise rather than as a legal test.
Consideration – grounds 1 and 3
In Minister for Immigration & Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ the High Court stated:
…The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Just as an absence of previous persecution does not preclude a person from having a well-founded fear, an incidence or incidences of previous persecution does not mean that a person has a well-founded fear at the time the determination of refugee or protection status is assessed. The relevant time to determine the applicant’s claims to refugee status are at the time of the IAA Decision, not at the time the applicant left his country or at the time he lodged his SHEV application: Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288.
The Court notes the following remarks made in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8 (“Appellant S395/2002”) at [58] per McHugh and Kirby JJ:
Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future. But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a “well‑founded fear of being persecuted for reasons of ... membership of a particular social group”.
(Emphasis in original).
If an applicant satisfied the well-founded fear test when fleeing their country, in the absence of a material or substantial change in circumstances then a continuation of that status is likely: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412; (1989) 21 ALD 139 (“Chan”), CLR at 391 per Mason CJ and 399 per Dawson J. The applicant made submissions to the IAA to this effect: CB 252, and stated that there were no changes to the applicant’s circumstances and therefore on return to Sri Lanka he will be at risk of harm.
The IAA evaluated and assessed the applicant’s claims based upon the view that the previous harm occurred as a result of the applicant’s perceived links to the LTTE. No doubt that was, at least in part, because the applicant’s submissions to the IAA at CB 250 were framed in this way:
B. The claimant’s claims for protection are based on the following:
5. His imputed political opinion (LTTE supporter), hence systematic arrest and interrogation of the applicant by the Sri Lankan security intelligence.
Insofar as ground 1 suggests the IAA mischaracterised the applicant’s claims, clearly this is not the case where it was plainly put to the IAA that the past harm was inflicted on the basis of the applicant’s imputed political opinion.
The “relevant field of enquiry” for the IAA to evaluate the applicant’s claims and determine what was likely to occur in the future was on the basis that applicant’s past harm was because of his imputed LTTE political opinion. Having framed his past persecution in this way, it cannot be said that it was unreasonable or illogical for the IAA to use the 2015 DFAT Report, the 2016 UKHO Report and the 2012 UNHCR Guidelines, which indicated profiles of persons at risk of harm arising from real or perceived links to the LTTE, as tools in the assessment of whether the applicant had a well-founded fear of persecution because of the risk of future harm if he returned to Sri Lanka.
The claims actually put to the IAA were that the applicant had been serially detained, tortured, accused of multiple specific bombing attacks, and ultimately threatened with extra-judicial killing because of his imputed political opinion as an LTTE supporter. The IAA grappled with those claims and assessed whether the applicant would be at risk of serious harm, or a recurrence of the harm he had previously been subjected to, in the reasonably foreseeable future.
The Court notes that at CB 277-278 at [34] the IAA states as follows:
34. The United Nations High Commissioner for Refugees’ (UNHCR) current Eligibility Guidelines for Sri Lanka note that a person’s real or perceived previous links with the LTTE may give rise to a need for international refugee protection…
(Emphasis added).
At CB 279 at [39] the IAA states:
39. However, the applicant has neither a real link nor a perceived link to the LTTE. I accept the applicant’s consistent evidence that neither he nor his family had any connection with the LTTE. While I accept that the applicant has in the past been mistreated by the Sri Lankan authorities, and accused of LTTE involvement, I have found that the applicant was not of any ongoing adverse interest to the authorities following the 2012 interrogation, or at the time of his departure or subsequently. I have found that the authorities would not have had any further interest in the applicant had he remained in Sri Lanka and that he was not the subject of any outstanding investigation that might cause him to be identified on return.
The IAA, in the opening two sentences at CB 279 at [39], addressed whether the applicant had real or perceived links to the LTTE. The IAA then addressed (and appeared to accept) that the Sri Lankan authorities had previously perceived the applicant to have had links to the LTTE. The IAA found that, despite the previous links to the LTTE, the applicant would no longer be of any interest to the Sri Lankan authorities. The IAA’s reasoning at CB 279 at [39] makes it clear that it was not because the applicant did not meet any of the UNHCR profiles that he was found not to have a real chance of harm on the basis of a perceived political support to the LTTE. Rather, the IAA was not satisfied the applicant was, at the time of departure and thereafter, of adverse interest to the authorities such that his accepted previous perceived links to the LTTE would give rise to harm upon his return to Sri Lanka.
The IAA did not substitute the well-founded fear test with a test of whether the applicant satisfied the profiles of the 2012 UNHCR Guidelines. When detailing the types of profiles that may give rise to a need for protection, the IAA used the term “includes”, denoting that the IAA did not confine itself to these profiles only, rather this was merely a sample of the circumstances that the 2012 UNHCR Guidelines refer to. When one reads the IAA Decision at CB 277-279 [34]-[39] as a whole, it is clear that the IAA had, impliedly, accepted that the applicant did possess a profile of interest, however that profile was not sufficient to give rise to a real chance of persecution in the reasonably foreseeable future, hence the fear of persecution was not “well-founded”.
It would not have been rational or logical or reasonable for the IAA to reason that because the applicant did not fall into a particular profile, he would not face any future risk. The IAA did not, however, reason in that way. The 2012 UNHCR Guidelines were but one consideration the IAA had regard to in determining the applicant’s chance of harm if he were returned to Sri Lanka. Other considerations included:
a)the applicant’s own evidence that:
i)he had not been targeted or questioned in the two months following the incident in June 2012 (an incident for which there did not appear to be any particular reason for the targeting of the applicant);
ii)he left Sri Lanka on his own passport; and
iii)inquiries had not been made of or about him by the Sri Lankan authorities in the four years since his departure: CB 276 at [28]-[29] and CB 279 at [39]; and
b)relevant country information, including the 2012 UNHCR Guidelines and a UKHO “Operational Guidance Note: Sri Lanka (July 2013)”, consequent upon which the IAA observed that there had been “a continuing reduction of the previous war time restrictions in Colombo in 2012, that compulsory restriction of Tamils living in Colombo had ceased, and that “the Sri Lankan government’s focus changed, since the end of the war, to people who are perceived to be a threat to Sri Lanka as a single state, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora or the renewal of hostilities within Sri Lanka”: CB 275 at [23], and by reference to that country information, and other country information including the 2012 UNHCR Guidelines, the 2015 DFAT Report and the 2016 UKHO Report, concluded that the applicant was not at risk of harm because he was of no further interest to the Sri Lankan authorities, and was not the subject of any outstanding investigation that might cause him to be identified on return to Sri Lanka: CB 279 at [39].
The Court therefore does not accept that the IAA did not look at the applicant’s individual circumstances. The Court is satisfied that the IAA properly considered the applicant’s individual circumstances and has not erroneously reasoned that as the applicant was not within a “template” profile ascribed by the 2012 UNHCR Guidelines he was not at risk of harm. Contrary to the applicant’s submission, the IAA considered and meaningfully analysed this applicant’s particular individual circumstances.
The Court notes that the IAA’s findings that the June 2012 incident was isolated and that the applicant would no longer have been of adverse interest if he remained, may not be findings that a differently constituted IAA might have arrived at, but they were nevertheless findings that were open to be made by the IAA on the basis of the material and evidence before it, including:
a)that the applicant had not been the subject of any harm or mistreatment for almost three years prior to the incident in June 2012;
b)that the applicant did not have any further encounters after the June 2012 incident, he departed Sri Lanka on his own passport without difficulty, and he is not aware of any interest or inquiries being made of or about him since then;
c)that there was an absence of any discernible reason for the June 2012 incident which did not appear to be connected to any actual activities in which the applicant engaged, knowledge that he possessed, or any relevant external events; and
d)the country information as discussed at CB 275 at [23] and 277-279 at [34]-[38] of the IAA Decision,
and was therefore a decision within the range of logical or rational decisions that might have been made by the IAA: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130]-[131] per Crennan and Bell JJ.
The applicant has not established jurisdictional error in grounds 1 or 3 as pleaded, or as developed during the course of oral submissions. The IAA did not fail to exercise jurisdiction by asking itself the wrong question, or by engaging in illogical or unreasonable reasoning, or by failing to consider or by mischaracterising the applicant’s claims, or by denying the applicant procedural fairness.
Grounds 1 and 3 are not made out and do not establish any jurisdictional error in the IAA Decision.
Ground 2
Ground 2 alleges jurisdictional error in the IAA:
Purporting to make a dispositive finding of fact that the Sri Lankan authorities had made no enquiries of the Applicant since his leaving Sri Lanka, where that was without any foundation at all or was speculative, thereby exceeding jurisdiction, alternatively failing to take into account a relevant consideration, namely that the Applicant had in fact provided at his Departmental interview a possible explanation for his detention in 2012;
Applicant’s submissions
In support of ground 2 the applicant submitted that:
a)the applicant challenges the finding at CB 279 at [39] on the basis there was no satisfactory foundation on the material before the IAA for that finding;
b)to the extent that the IAA suggests, by the use of the past-perfect tense, that some analysis had been undertaken elsewhere, that can only be a reference to CB 276 at [25];
c)the evidence of the applicant at the SHEV Interview was that he had not asked if anyone had questioned his whereabouts, nor did his written claims address the enquiries made of him post-2012. Therefore, there was no positive material from which the IAA could have reached a positive finding of fact that no enquiries have been made about the applicant in Sri Lanka;
d)it was irrational or illogical, in a fundamental formal logic sense, or as lacking an intelligible justification, to derive a positive finding of fact from the evidence, nor was there any explanation of an attempt to infer that the applicant maintains a regularity and intimacy of contact with the family that such a matter would have been communicated, and the further inference that that factor was sufficiently obvious for the applicant to volunteer to the Delegate or in his written claims;
e)it was open to the IAA to find as it did, on the basis of a finding which would elsewhere have been set aside on the basis of a denial of procedural fairness, but it still can be jurisdictional error on the basis of lacking intelligible justification or unreasonableness;
f)the proposition was not put to the applicant under s.57 of the Migration Act by the Delegate as would have been required and the logical fallacy at CB 279 at [39] is that the IAA fashions some sort of positive finding out of at least two negatives.
Minister’s submissions
In respect of ground 2 the Minister submitted that:
a)the applicant asserts that the IAA made a finding without evidence, that being that the Sri Lankan authorities had made no inquiry concerning the applicant after he left Sri Lanka;
b)there was a sufficient basis, being the applicant’s own evidence, for the IAA to make the finding that the Sri Lankan authorities had made no inquiry concerning the applicant after he left Sri Lanka;
c)in any event, the challenged finding is consistent with the IAA’s finding that the applicant was of no interest to the Sri Lankan authorities;
d)there is no reason to disbelieve the applicant when he says that he never told his family about his mistreatment at the hands of the authorities because he didn’t want to scare them, nonetheless it does not logically follow that his family could not tell him if they had been visited, and therefore it was not illogical for the IAA to assume such;
e)jurisdictional error based on illogical or irrational findings must be extreme. It is not enough for a finding of fact to be one on which reasonable minds might come to different conclusions; and
f)in this case, even it were considered to be illogical, such would not have changed the outcome of the IAA Decision as there were other findings of fact made leading to the ultimate conclusion.
Consideration – ground 2
In SZMDS the High Court set out the test for irrationality or illogicality at [131] per Crennan and Bell JJ as follows:
…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
More recently, in Gupta v Minister for Immigration & Border Protection [2017] FCAFC 172; (2017) 255 FCR 486; (2017) 161 ALD 1 at [34]-[35] and [39] per Gilmour and Mortimer JJ, the majority in the Full Court of the Federal Court summarised the principles to be observed in the context of an alleged error of this sort:
[34] To discern irrationality or illogicality in the Tribunal’s reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]-[85] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[35] Moreover, illogicality must be shown to have affected the decision in question: SZOOR at [85].
[39] Moreover, the Tribunal’s conclusion needs to be considered within the totality of the Tribunal’s reasons. It was but one of a number of adverse conclusions reached by the Tribunal as to the appellant’s claims that she genuinely intended to study. It is by no means among the most significant of the factors which led to the rejection of her claim.
(Emphasis added).
The critical part of the IAA Decision at CB 279 at [39] that the applicant refers to is:
39. … I have found that the applicant was not of any ongoing adverse interest to the authorities following the 2012 interrogation, or at the time of his departure or subsequently. I have found that the authorities would not have had any further interest in the applicant had he remained in Sri Lanka and that he was not the subject of any outstanding investigation that might cause him to be identified on return.
(Emphasis added).
It was submitted by the applicant that the emphasised part in the above quoted passage was critical, as when looked at “closely” there is no evidentiary foundation for the finding. The Court is mindful, however, not to closely scrutinise the IAA Decision minutely, and to read the IAA Decision as a whole: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
At CB 276 at [25] the IAA remarked that:
25. The applicant does not know of, and does not claim that, since his departure in August 2012, the Sri Lankan authorities visited or questioned his family. I accept, in the absence of information to the contrary, that his family have not been questioned or contacted.
The applicant states that the use of “accept” is “curious” as the applicant did not make a claim that his family had or had not been contacted, and therefore there was no need for a finding or “acceptance”.
The applicant submitted that the past-perfect tense at CB 279 at [39] could only have been a reference to CB 276 at [25] of the IAA Decision. What the IAA Decision refers to at CB 279 at [39], being what the IAA has “found”, can, however, be traced to CB 276 at [25]-[30]. Specifically, at CB 276 at [28] the IAA notes that the applicant had not claimed that he had any further encounters with the Sri Lankan authorities, or that the authorities were looking for him, or that anyone he knew was questioned about him after the 2012 incident. This builds upon the statement at CB 276 at [25] where the IAA found that the applicant’s family had not been questioned or contacted. At CB 276 at [29], the IAA then states:
29. On his own account of the 2012 incident it is not clear why the authorities suddenly became interested in the applicant when he had clearly been of no interest to them since the incidents in Colombo during the war years. From what he has said about their questioning and what was said during the interrogation it does not appear that they had any particular reason to have targeted him at that time. The applicant himself has not put forward any clear or persuasive reason to explain this interest. The applicant cannot be expected to explain the actions of the security authorities. However, in the absence of any discernible reason for this one-off revival of interest in him, which does not appear to be connected to any actual activities in which he engaged, knowledge that he possessed, or any relevant external events, I am not satisfied that there is a real chance that he would be of further ongoing interest in the future. This is particularly so given that there was no further attempt to contact or locate the applicant during the two months that he remained in Sri Lanka after the incident. Moreover, he does not claim that the authorities have made any inquiries about him in the almost four years that he has been outside of Sri Lanka.
The applicant referred to the SHEV Transcript to establish what evidence the applicant proffered to the Delegate, and which the IAA relied on at CB 276 at [25] and [28]-[29]. The applicant’s evidence was:
O: Has anyone else in your family had trouble since you left?
A: Is it because of me?
O: Yes
A: Because after, I didn’t inform my university, and I didn’t resign either, so from my university they called my house, where is [the applicant], should we report to police? I didn’t inform to anyone.
O: So your family hasn’t been questioned or anything about where you are?
A: I don’t know whether they went and asked, because I haven’t told my story even to my family because they’ll get scared.
O: Has your brother had any problems with authorities in SL?
A: For him, personally?
O: Yes
A: I don’t know
(SHEV Transcript, page 18 at lines 12-23).
Insofar as it was submitted that the applicant’s evidence was that he had not asked if anyone had questioned his whereabouts, this is not accurate. The applicant’s evidence, as described above, was, generally, that he did not know if his family had been asked, by the university or authorities, about his whereabouts. For reasons which are explained further below, in the context of fast track reviewable decision, it is critical for an applicant to advance as much information and evidence as possible in support of their claims for protection. The applicant proffered no evidence that his whereabouts had been the subject of inquiry by anyone in authority in Sri Lanka.
The concepts of onus and burden of proof are, generally, not appropriate to administrative inquiries, and in particular migration review proceedings before an administrative decision-maker: Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288.
In MZYLE v Minister for Immigration & Citizenship [2011] FMCA 589 (“MZYLE”) the decision-maker in that case had stated that it was required to “come down on one side or the other”, that is, it was required to make findings on divergent views. In MZYLE at [45] per Riethmuller FM the Federal Magistrates Court said:
In assessing a claim by an asylum seeker the law is quite different. It is not necessary to establish on the balance of probabilities that a particular asylum seeker will in fact suffer persecution, but rather that there is a well-founded fear of persecution. That is, the law requires an assessment of the risk to the asylum seeker, not a positive finding as to what the future will in fact hold.
The IAA clearly assessed the risk of harm to the applicant based on positive findings of previous harm. It then engaged in the necessary degree of speculation as to what the future will hold based on the evidence and material before it.
In Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34] per Sundberg, Emmett and Finkelstein observed:
…in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law.
When considering the IAA Decision as a whole the Court is not satisfied the IAA has drawn an inference in the absence of evidence, made a positive finding in the absence of evidence, or that it has made an illogical or irrational finding at CB 276 at [25] or CB 279 at [39]. What was before the IAA included the following:
a)the applicant’s response to question 45 of the SHEV application form which asks the applicant if he is in contact with relatives, and where he states:
Once a week sometimes twice a week and sometimes once every two weeks. It all depends on whether the need to talk;
b)in response to question 87 of the SHEV application form where the applicant was asked “Are you aware you are the subject of a criminal investigation or have criminal charges pending against you?” he answered in the affirmative and detailed “The CID/TID suspected I am a supporter of LTTE”: CB 51. The applicant has used the “past-tense”;
c)the applicant, who was represented before the Delegate, was asked questions about any inquiries that had been made of him in Sri Lanka and the applicant was not aware of any: SHEV Transcript, page 18;
d)evidence that the applicant did not have any encounters after the June 2012 incident and his departure, and the fact he travelled through the airport to leave Sri Lanka on his own passport without difficulty: CB 276 at [28]; and
e)the absence of any claim or indication the Sri Lankan authorities had made any inquiries about him since leaving Sri Lanka: CB 276 at [29].
Section 5AAA(2) of the Migration Act expressly provides that:
…it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
Essentially, the relevant facts and evidence in each case have to be supplied by an applicant so as to enable the decision-maker, in migration proceedings, to be affirmatively satisfied that the criterion for a particular visa are met: Migration Act, s.65; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 at [187] per Kirby J.
The Court notes that shortly after the line of questioning set out at [38] above with the Delegate, a “natural justice break” was taken to allow the applicant to confer with his representative, but that nothing further appears to have been put to the Delegate by the applicant in relation to that line of questioning after the “natural justice break”. The Court notes that the applicant attended his SHEV Interview on 12 May 2016: CB 102, was represented at the SHEV Interview, and after the SHEV Interview, on 22 May 2016, made further submissions in relation to questions which were asked of the applicant at the SHEV Interview: CB 189. The applicant did not, however, as he might have, obtain further information or seek to provide further evidence in relation to any inquiries made in Sri Lanka of his family members or others in relation to his whereabouts or any perceived links with the LTTE.
It must not be overlooked that the IAA is to conduct the review “on the papers”: Migration Act, s.473DB. The IAA is limited in the material it has regard to in making its decision, and this makes it incumbent upon an applicant to put forward the best case possible before the Delegate. While this may seem unfair, this is the scheme of Pt.7AA of the Migration Act and in circumstances where the IAA has provided logical and cogent reasons for the findings and conclusions it has made based upon the “review material” that was before it, there can be no error of the kind the applicant suggests: SZMDS at [133] per Crennan and Bell JJ. In the Court’s view, the finding that the applicant was not the subject of any ongoing investigation was a finding that was open to the IAA to make on the basis of the materials and information that were before it. Further, in respect of what was said at CB 276 at [25] there was an intelligible justification for the IAA to accept that, as the applicant had not claimed and was not aware that there had been any inquiries or questions asked of the applicant’s family about the applicant, that there had been no inquiries or questions. It was not unreasonable or illogical for the IAA to have reasoned that if inquiries had been made, that the applicant’s family would have communicated this to him even in circumstances where he had allegedly not told his family of his mistreatment, and, in circumstances where family members allegedly did not know about the applicant’s mistreatment, there would have been even more reason for the applicant’s family to communicate with the applicant about any such questions or inquiries had they been made. While a differently constituted IAA may have not reasoned in this way on this issue, it cannot be said that no logical or rational or reasonably minded person would not adopt the same reasoning as was adopted by the IAA: SZMDS at [135] per Crennan and Bell JJ.
Reading the IAA Decision as a whole, the Court is also not satisfied that the IAA has acted illogically or otherwise in determining that:
a)the applicant was not the subject of any outstanding investigation; and
b)inquiries had not been made of the applicant’s family as to the applicant’s whereabouts.
For the reasons set out at [63]-[64] below in relation to ground 4, the IAA did not fail to consider a relevant consideration, namely, the alternative explanation for the 2012 incident.
Ground 2 therefore fails to identify any jurisdictional error in the IAA Decision.
Ground 4
Ground 4 alleges jurisdictional error in the IAA Decision as follows:
Approaching its task mechanistically and non-cumulatively by not engaging with the implicit proposition that each encounter with the Sri Lankan authorities placed the Applicant at a heightened risk of harm, and dealing with the claim for complementary protection in isolation, thereby constructively failing to exercise jurisdiction.
Applicant’s submissions
In support of ground 4 the applicant submitted that:
a)the IAA was required to have regard to the whole of the case advanced by the applicant, by taking into account all of the risk factors as a cumulative whole, and that the country information relied upon by the IAA provided for a finding that persons believed to be involved with the LTTE diaspora may be subject to a continuing and real risk of detention, torture, and murder;
b)in response to questioning at the SHEV Interview, the applicant offered an explanation for why he might remain of interest to the Sri Lankan authorities, in that he explained his concern that the authorities were mindful of a resurrected LTTE, and the 2015 DFAT Report notes that the authorities “remain sensitive to the potential re-emergence of the LTTE throughout the country”;
c)as a returned Tamil asylum-seeker, who had, to the knowledge of Sri Lankan authorities, been serially detained, tortured, accused of involvement on bombings, and threatened with murder, it was capable of being inferred by the authorities that the applicant had claimed protection on the basis of an imputed LTTE association, and that is rationally capable of confirming a suspicion or belief that the applicant did in fact have LTTE links;
d)the applicant was a gifted young Tamil university medallist, who had previously been known to have demonstrated against the government, suspected or accused of bombing activities, who had been brutalised by the Sri Lankan authorities, and he was a potential leader in a resurgent LTTE, and from the authorities’ perspective this was capable of supplying an answer to the IAA’s assertion that there was no reason why the applicant might be of continuing interest to the authorities under the category of “Imputed political opinion (LTTE supporter)” or might have logically informed the IAA’s reasoning under the category “Tamil failed asylum seeker”; and
e)notwithstanding the boilerplate statement at CB 281 at [52] that it had adopted a cumulative approach, the IAA did not do so in substance and the IAA cannot immunise itself from judicial review by such statements.
Minister’s submissions
In support of ground 4 the Minister submitted that:
a)ground 4 fails on the facts as the IAA effectively worked in its refugee conclusions in dealing with the complementary protection claim; and
b)the arguments the applicant has stated were to be considered cumulatively were simply not put to the IAA and the applicant is simply seeking merits review.
Consideration – ground 4
The “boilerplate” the applicant refers to as insufficient, and what the Minister relies upon as disposing of ground 4, is CB 281 at [52] of the IAA Decision which is as follows:
Cumulative circumstances
52. I have considered the applicant’s cumulative circumstances including his imputed political opinion, as a returned Tamil failed asylum seeker and as a Tamil male. Even having regard to his cumulative circumstances, I am not satisfied that there is a real chance that the applicant will face persecution on return to Sri Lanka now or in the reasonably foreseeable future.
The Court also draws attention to CB 282 at [59] of the IAA Decision:
59. Having considered the applicant’s circumstances individually and cumulatively, I am not satisfied that he faces a real risk of significant harm.
It is well-established that where the essential claims and facts that the applicant puts forward for the purpose of protection under s.36(2)(a) of the Migration Act are also relied upon for the purpose of s.36(2)(aa) of the Migration Act, the IAA is entitled to rely upon the findings made under s.36(2)(a) of the Migration Act in determining if there is a real risk of significant harm: MZYXS v Minister for Immigration & Citizenship [2013] FCA 614 (“MZYXS”) at [31] per Marshall J.
In SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37] per Robertson, Griffiths and Perry JJ the Full Court of the Federal Court states:
We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.
In Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188 (“DDK16”) at [34] per Gilmour, Markovic and O’Callaghan JJ the Full Court of the Federal Court stated:
34. … It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.
In CED17 v Minister for Immigration & Border Protection [2018] FCA 877 at [24]-[26] per Steward J, having referred to DDK16, the Federal Court found as follows:
24. The difference between the parties lay in what were the matters that had to be considered cumulatively. The appellant focused on the individual specific findings about historical events set out above. These, he submitted, should have been considered in aggregate. The Minister focused on the conclusions reached concerning each claimed fear which followed from both a consideration of the existence of those historical events, and how those events might have consequences for the appellant now, or in the reasonably foreseeable future.
25. In my view, and with respect to the appellant, based on the Full Court’s decision in DDK16, the Minister’s position is correct. What must be considered in a cumulative way are the “claims or bases”, to use the language of DDK16 (at [34]), for establishing the existence of a well-founded fear of persecution. Here, the “claims or bases” relied upon by the appellant were:
(1) fear arising from being a young Tamil from the East with real and imputed pro-LTTE political opinion;
(2) fear arising from the actions of the Karuna Group; and
(3) fear arising from having left Sri Lanka illegally.
26. The findings of the IAA at [15], [30], [40] and [41], supra, addressed each of these claims and rejected each of them as a basis for the existence of a well-founded fear of persecution. It follows that this is a case where it can be said, as it was in DDK16: “that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country” (at [32]).
In this case the “claims or bases” the applicant put forward for consideration were (see CB 250):
5. His imputed political opinion (LTTE supporter), hence systematic arrest and interrogation of the applicant by the Sri Lankan security intelligence.
6. His membership of a particular social group (returned Tamil failed asylum seeker from Australia).
The applicant’s representative submitted to the IAA that these claims alternatively gave rise to protection obligations under s.36(2)(aa) of the Migration Act: CB 261. The IAA noted that no specific claims were advanced separate from those raised with respect to the refugee criterion: CB 282 at [56]. It then reasoned, in line with MZYXS, that having found there was no real chance of harm, there was no real risk of significant harm if the applicant were returned to Sri Lanka.
The Court agrees with the Minister’s submission that it was not advanced that the applicant was a potential leader in a resurgent LTTE, or that the applicant would be perceived as such by the Sri Lankan authorities on return. What the applicant relied upon at hearing was, in speculating that in June 2012 he was interrogated and questioned because the authorities thought there may be a resurrection of the LTTE, and they wanted to “take all the Tamil young boys”: SHEV Transcript, page 17 at line 35. The IAA Decision addressed this at CB 276 at [29] in finding there did not appear to be any particular reason for the authorities questioning the applicant, and it did not appear to be connected to any actual activities in which he had engaged, knowledge that he possessed, or any relevant external events: CB 276 at [29].
The Court notes that this ground was not framed as a failure to consider a claim, and in any event (noting what has been referred to at CB 276 at [29] of the IAA Decision) the Court is satisfied that the IAA addressed this issue in determining that the June 2012 incident was a “one-off revival” which did not appear to be connected to “any actual activities in which he engaged” or “knowledge he possessed”, and that the applicant would not be of further ongoing interest to the Sri Lankan authorities as he did not have any real or perceived LTTE links that would be identified on arrival or return to Sri Lanka: CB 279 at [39], 280 at [46] and 281 at [57].
The IAA addressed the claims made by the applicant: the imputed political opinion claim at CB 277-279 at [34]-[40], the particular social group claim at CB 279-280 at [41]-[47], and the applicant’s status as a Tamil male claim at CB 281 at [48]-[51], the latter being a claim which arose impliedly from the materials before the IAA. At CB 279 at [40], 280 at [47] and 281 at [51] the IAA made findings that these matters did not satisfy it that there was a real chance or real risk of persecution if the applicant were to return to Sri Lanka. Applying DDK16 at [34], the “cumulative consideration”, as a matter of “inexorable logic”, is not capable of producing a different result.
In any event, when reading the IAA Decision as a whole, the IAA has assessed all of the relevant findings of fact in a cumulative way: SZQFC v Minister for Immigration and Citizenship [2012] FCA 409; (2012) 126 ALD 530 at [65] per Yates J. On its face, the findings at both CB 281 at [52] and 282 at [59] are express acknowledgements that the IAA has done so.
In the above circumstances ground 4 fails to establish jurisdictional error in the IAA Decision.
Conclusion and orders
The Court has concluded that the Amended Judicial Review Application does not establish any jurisdictional error in the IAA Decision, and there will therefore be an order that the Amended Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 August 2019