COI17 v Minister for Immigration and Border Protection
[2020] FCA 176
•21 February 2020
FEDERAL COURT OF AUSTRALIA
COI17 v Minister for Immigration and Border Protection [2020] FCA 176
Appeal from: COI17 v Minister for Immigration [2019] FCCA 1687 File number: NSD 1054 of 2019 Judge: PERRAM J Date of judgment: 21 February 2020 Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing application for judicial review of Immigration Assessment Authority decision to refuse to issue Safe Haven Enterprise Visa – where Appellant claimed protection on basis of Tamil ethnicity, political support of Tamil National Alliance and potential status as failed asylum seeker – whether Authority’s finding that reports of other Tamil disappearances were unconnected to Appellant was unreasonable – whether Authority failed to consider relevant material and considered irrelevant material – whether Authority failed to give reasons for concluding there was no real chance of Appellant suffering harm Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 36, 46A
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited: Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389
Minister for Immigration and Border Protection vSZMTA [2019] HCA 3; 264 CLR 421
Date of hearing: 19 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 44 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent Ms K Hooper Solicitor for the First Respondent: Mr R J White of Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1054 of 2019 BETWEEN: COI17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
21 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
On 23 December 2015 the Appellant signed an application for a Safe Haven Enterprise Visa (‘SHEV’) and lodged it with the Department of Immigration and Border Protection (‘the Department’) on 29 December 2015. A SHEV is a species of temporary protection visa which provides a pathway to a permanent residency visa if the holder works in regional Australia for three and a half years and receives no Commonwealth special benefit payments. These can be difficult requirements to meet in practice, especially if one has arrived in Australia in difficult circumstances and does not speak English.
In this case the Appellant speaks Tamil. He arrived without a valid visa. He had made a previous application for a protection visa but this was invalid. He was born in Kurrukkal Madam which is a village in the district of Batticaloa. The district of Batticaloa is in the Eastern Province of Sri Lanka and also contains a city named Batticaloa. Kurrukkal Madam lies about 25 km south-east of the city of Batticaloa. The Appellant was born in 1982 and is presently 37 years old. He is ethnically Tamil and, like most Tamils in Sri Lanka, is a Hindu. Tamil is his natural language although he can also speak a little English. Both his parents are alive and he has two sisters all of whom live in Kurrukkal Madam in Sri Lanka. He completed secondary school and commenced a Bachelor of Arts at Eastern University in 2007 although this appears to have been cut short when the university closed in July 2012. Whilst in Sri Lanka he was employed by Arche Nova, an NGO, as a construction site supervisor. As will be seen, some of the Appellant’s claims for refugee status rely upon incidents which happened to him whilst in that position. Arche Nova is a charity which helps people in need. Subsequent to his contract ending with Arche Nova, he also had periods of unemployment.
The Appellant left Sri Lanka by boat on 3 September 2012 and, after a 16 day voyage, arrived for the first time in Australia without travel documentation (or, I infer, a valid visa) on 19 September 2012. This made him an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth) (‘the Act’), a status which was subsequently recorded in the Department’s records. As such he was not entitled to apply for a visa because of the bar imposed by s 46A(1) of the Act. Sometime prior to 13 January 2016 the First Respondent (‘the Minister’) exercised his personal power to lift that bar under s 46A(2) and to permit the Appellant to make an application for a visa.
It appears that when the Appellant first arrived he was held in the Commonwealth’s detention centre on Christmas Island (which is around 1,550 km off the north-west coast of Western Australia) and is a common and convenient place for persons who have travelled across the Indian Ocean by boat to be processed on arrival. A few months later he was transferred to the Curtin detention centre near Derby which is in the Kimberley region of Western Australia. On 1 March 2013 he was released from immigration detention presumably on a bridging visa and subsequently has lived at various addresses in Queensland. His bridging visa does not permit him to work and, by Commonwealth fiat, he is therefore unemployed.
In his application for his protection visa he made a number of claims for protection under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Refugees Convention’).
His claimed political activities were as follows. He had campaigned for the election of a Mr Yogeswaran, the candidate of the Tamil National Alliance (‘TNA’) in the 2010 presidential election. Many members of the Appellant’s family had also been politically active. In particular, his grandfather and father had been active supporters of the Tamil United Liberation Front, a political party which later formed part of the TNA. In 2012 the Appellant had also supported Mr Thurairathinem in the local provincial elections by campaigning with his father throughout the Batticaloa region by handing out leaflets door to door, and at major shopping centres, temple compounds and public meetings. During the election campaign the Appellant conducted community meetings where he arranged the sound systems and organised the local people to help setting up tables and chairs. He also claimed to speak publically at these meetings. The Appellant submitted that he did so because he believes in the TNA and understands the issues facing Tamils. Between 2010 and 2012 he had attended meetings of the Youth Wing program and he was also the president of the local Asian Club. That club did social work and supported local sporting organisations and education in his village. He has regularly attended meetings of the TNA in his village with his father and other relatives.
The acts of persecution the Appellant referred to were these:
·In 2009 a good friend of his was arrested for no reason and detained in Welikade Prison in Colombo Zone 09 for 12 months without charge. The Appellant had heard from the friend’s parents that his friend had been tortured whilst in Welikade Prison by having his finger nails pulled out and by being beaten with metal bars. After this the Appellant said his friend was never the same. Even after the friend’s release he was constantly harassed by the Sri Lankan police even at his house. Eventually the friend was rearrested and detained for a further four months. A few months after his second release, his friend hanged himself at home.
·The second set of events concerned the activities of the Karuna Group. The Karuna Group is the former name of the political party now known as the Tamil Makkal Viduthalai Pulikal (‘the TMVP’). It was formed by Mr Karuna Amman in 2004 when he defected from the Liberation Tamil Tigers of Ealam (‘the LTTE’). At an earlier time Mr Karuna Amman had been the leader of the LTTE. At the risk of greatly oversimplifying a very complex political situation and omitting a lot of controversial detail, the Karuna Group (now the TMVP) was initially a pro-government paramilitary group fighting the LTTE. Its members carried arms—they say for protection from remnants of the LTTE; others say the LTTE works for the Sri Lankan government which turns a blind eye to the Karuna Group’s principle business of extorting Tamil businessmen by means of abductions and violence. The Karuna Group was very active in the Batticaloa district (where the Appellant’s village is). The Appellant says that he first had trouble with the Karuna Group in 2010. It will be recalled that the Appellant had worked for Arche Nova as a construction site supervisor. He says that Arche Nova and its contractors were forced to purchase their building materials from the Karuna Group. On one occasion, bricks had been delivered to the site but they were defective and he said, I infer to the Karuna men who had delivered them, that they needed to be replaced. The Appellant was subsequently told by men from the Karuna Group that he would see the consequences of his actions and would learn a lesson. He also said that there were several further incidents where men from the Karuna Group demanded that he hand over cash from the payroll which he declined ever to do. He does not say that anything happened physically to him immediately as a consequence of his actions—his account in 2010 is limited to threats.
·The Appellant does say, however, that in 2012 (that is, nearly one and a half years later), the situation worsened. In 2012 the Karuna Group again demanded he hand over cash from the payroll and threatened to kill the Appellant should he not do so. The Appellant again refused to hand over the money and he then made a complaint to the Supervising Engineer. A public meeting was held to discuss the matter and this led to members of the public contacting the Karuna Group to complain about the security issues on the construction site. In consequence, the Karuna Group said that it would no longer interfere with the construction work. The Appellant had thought that this was the end of the matter. However, a few days later on his way to work he was stopped close to an army checkpoint by six uniformed soldiers of the Sri Lankan Army (‘the SLA’). He was told to get off his motorcycle and was then accompanied at gunpoint to a grassed area away from the road. There the Appellant had his hands tied behind his back and his motorbike and mobile phone were confiscated. The soldiers made him wait there, so bound, for quite some time. Eventually several men turned up dressed in jeans and t-shirts. The Appellant claims he could tell these men were from the Karuna Group because of their accents. They beat and punched him in the face, hit him around the head, neck and chest and kicked him while he was lying on the ground. They untied him and left him there. He was later discovered unconscious by a passing stonemason from the building site and some people from his village who informed his father of where he was. Subsequently, after permission was obtained from the local command he was taken away on his father’s motorcycle to Kiran which is another village north of the Batticaloa district. As a consequence of the wounds he received from the assault, which included a bad back injury, the Appellant remained in bed for several days. The Appellant was afraid that he might be beaten again or killed if he spoke out again. His father raised the matter with the Supervising Engineer but the engineer asked his father not to complain about the beating as this would only make things worse. After about a month and half he was able to go back to work but he did not return to the building site.
·Apart from his own personal experience with the Karuna Group, the Appellant had heard a lot of stories about Tamil people being abducted by the Karuna Group for ransom. In fact, he knew one such person who was a nearby neighbour in his village. He had been taken for two months and whilst abducted was beaten and tortured. The Appellant knew of two other men who had been abducted. One was taken for four years and the other was killed.
·I have already mentioned the Appellant’s claims that he campaigned for the TNA candidate in the 2012 provincial council elections and that he was also the president of the local Asian Club. During the 2012 provincial council elections the club supported the TNA. In this campaign period the Appellant says that he was approached by the Karuna Group who demanded use of the club’s premises and the assistance of the club’s members in its campaign in the same election. The Appellant acquiesced in this but there was some delay in getting the owner of the premises (the local school) to go along with it. As a result of that delay his life was again threatened by the Karuna Group who told him to speed up the process or they would burn the school building down and hurt the club members.
·He also claimed that whilst driving a van he had been stopped just before the 2012 election by four men with guns who accused him of being a member of the LTTE. They took all of his pamphlets and set fire to them. He was told if he was caught campaigning for the TNA again he would be killed. On another occasion just before the election he was handing out pamphlets when a man hit him in the face several times and told the Appellant to leave immediately as he was supporting the TNA.
·A few months after that incident, he says that four men on motorcycles went to his house. He was not there but his father was and the four men beat his father up quite badly. They asked his father where the Appellant was and told him that if he continued to support the TNA they would both be hurt. This occurred in August 2012 shortly before the Appellant’s departure from Sri Lanka.
·The final incident occurred in September 2012. The Appellant had been handing out leaflets in another village and speaking with villagers asking them for donations. Four men in civilian clothing carrying guns approached him and walked him at gunpoint to his van. They confiscated all of his pamphlets and made the Appellant (and the people he was with) drive to a secluded spot before robbing them of the cash donations they had raised. They were told to stop campaigning. At one point one of the gunmen said that they should stop them from campaigning by shooting them on the spot. The Appellant and his companions pleaded with them and the gunmen then laughed. At that point a police motorcycle group came past and the gunmen left.
This final incident persuaded the Appellant he had to leave Sri Lanka. He did not return home and instead travelled by bus from his village to Colombo and then on to Galle which is on the southern tip of Sri Lanka. He left Galle by boat on 3 September 2012 arriving, as I have said, in Australia on 19 September 2012.
As a result of these incidents the Appellant claimed that he would be harmed or killed if he returned because of his support for the TNA, because he was a Tamil and because, if returned, he would be a member of a particular social group being the class of failed asylum seekers. He observed that he could not expect to be protected by the Sri Lankan authorities who would not take action on behalf of Tamils against the SLA or the Karuna Group.
In support of his application he provided a number of references. These were from:
(1)Mr Ariyanethran, a member of the Sri Lankan Parliament, dated 28 January 2013, who said that the Appellant had been threatened and searched by an unknown armed group because of his deep affiliation with the TNA and had been forced to flee as a consequence;
(2)Mr Suthakar, the Divisional Secretary of MS&EP (which appears to stand for the Manmunai South & Eruvil Pattu, although it is somewhat unclear from the stamp on the letter), who confirmed that the Appellant was of good character;
(3)Mr Thurairetnam, a member of the Eastern Provincial Council of Batticaloa, undated, who confirmed that when he had contested the 2012 election the Appellant had supported him, was popular and had been threatened by an unknown group;
(4)the principal of his school who confirmed that he would be a valuable employee, dated 3 September 2013;
(5)the President of the Rural Development Society, undated, who stated that he would be a valuable employee; and
(6)the President and Secretary of the Asian Sports Club, undated, who confirmed that the Appellant had been President, that under his leadership the club had supported the Tamil United Liberal Party in the 2012 elections and, as a result the Appellant had been threatened and had left for that reason.
Thus was the written material provided to the Department in support of the Appellant’s SHEV application. That application fell to be decided by a delegate of the Minister. The delegate requested the Appellant to attend an interview which would be held on 11 April 2016 at 1pm. The interview was conducted by an officer of the Department and was recorded. That recording was stored in the Department’s recording keeping repository, TRIM. Subsequently, the SHEV application and that recording were considered by a different officer of the Department.
The transcript of that hearing is not before this Court. However, it is apparent from the delegate’s reasons that the Appellant did raise the claim during the hearing that the school building in his village (which is next door to his house) has been occupied by the SLA since 2013. The Appellant claimed that he might be made subject to adverse attention if he were identified by an officer of the SLA at the school.
On 20 October 2016 that delegate refused the Appellant’s application for the SHEV. She accurately set out the Appellant’s claims for protection which I have summarised above. The delegate discounted the value of the references as she had not seen the originals but otherwise she accepted as credible the Appellant’s account of what had happened to him in Sri Lanka. She also accepted that he had departed Sri Lanka unlawfully.
The delegate then dealt with the Appellant’s three claims separately. As to his Tamil ethnicity: She did not accept that merely by being Tamil that it would be imputed to the Appellant that he was a member of the LTTE.
As to his activities in support of the TNA: In relation to the incidents arising from his work on the Arche Nova building site the delegate concluded these had all occurred as a result of the Appellant carrying out his work, were not politically motivated and that the Karuna Group’s attacks on him at that time did not relate to his ‘profile’ which I take to mean his association with the TNA. She also noted that since 2009 the Tamil community had been feeling safer and that since 2014 the Karuna Group had been demilitarised.
As to the other incidents relating to the Appellant’s campaigning activities for the TNA, the delegate thought that his role with it was ‘low-level’ and that he would not be pursued or harmed on the basis of such activity. At this point, of course, she had in fact accepted that the Appellant had been threatened and harmed by reason of just such ‘low-level’ activities. This may be thought to be inconsistent with her acceptance of the whole of the Appellant’s account of what had happened to him. However, the delegate’s reasons also adverted to the fact that in the 2015 election—some years after the Appellant had fled Sri Lanka—incidents of violence during the election campaign were much less than they had previously been. Only one person had been shot dead in Batticaloa in that election and there were only five violent incidents reported in the Batticaloa district. In the result, the TNA had captured a number of seats and was now the principal opposition party. In light of that, the delegate concluded that there was no real chance that the Appellant would be pursued or seriously harmed if returned to Sri Lanka on account of his association with the TNA.
The delegate also dismissed the account the Appellant gave at the interview about the SLA’s occupation of the village’s school. This she did on the basis that it was unlikely he would be identified by the SLA after four years especially having regard to the ‘low-level’ nature of his support for the TNA. And, one might add, especially given the Appellant’s account had not included any suggestion of him being harassed during the election by the SLA, but rather, that he was harassed by the Karuna Group.
In relation to his potential status as a failed asylum seeker: The delegate analysed information available to her about what happened to failed asylum seekers on their return to Colombo Airport. The delegate noted that ordinarily if the person had left illegally on a boat they were held in remand until the next sitting of the court at Negombo (about 30 km north of Colombo). At that time, they were usually released on bail or on their own recognisance. The usual penalty eventually imposed was a fine of 5,000 to 50,000 rupees. The delegate did note that there were reports, including more recent reports in 2016, that failed asylum seekers who were associated with the LTTE had been tortured on their return but it was not necessary to investigate those matters any further since the Appellant did not claim that he was associated with the LTTE. Therefore, she was satisfied that the Appellant did not hold a well-founded fear of persecution on the basis of him falling into a class of failed asylum seekers if he returned to Sri Lanka.
In those circumstances, she concluded that the Appellant did not have a well-founded fear of persecution for a reason under the Refugees Convention and hence was not a refugee within the meaning of s 5H(1) of the Act (which picks up the definition in the Refugees Convention). As such he was not eligible for the SHEV under s 36(2)(a).
The delegate then considered whether the Appellant might be entitled to the SHEV on the basis of the complementary protection provisions in s 36(2)(aa). Since she did not think the Appellant faced any real risk of harm if returned to Sri Lanka at all, inevitably she concluded that he was not eligible on this basis either. She therefore refused the Appellant’s SHEV application.
PROCEEDINGS BEFORE THE AUTHORITY
Because the Appellant was an unauthorised maritime arrival who arrived in September 2012 the delegate’s decision was subject to review under Pt 7AA of the Act without the need for him to file an application. On 27 October 2016 the delegate’s decision was therefore referred to the Immigration Assessment Authority (‘the Authority’) for the conduct of its somewhat attenuated form of review. Generally—and in this case—this involves a review on the papers without any further hearing. On 19 May 2017, the Authority concluded that the delegate’s decision should be affirmed.
The Authority accurately set out the Appellant’s claims although it omitted any consideration of the claim that the Appellant had raised in his interview on 11 April 2016 about the SLA occupying the school building in his village. It characterised his claims more broadly than the delegate did and included an additional claim based on the fact that he had worked for an NGO, Arche Nova.
As the delegate had done, the Authority concluded that the Appellant’s claims were credible. But in relation to the incidents which had occurred on the building site, the Authority did not think that he had been attacked by the Karuna Group because he worked for an NGO (this being the separate claim the Authority decided to look into itself) but because he refused to co-operate in handing over the payroll.
In relation to his activities in the 2012 election, the Authority thought that the Appellant had performed a more senior role than at the 2010 election and that this was sufficient for him to be recognised in his local area as a TNA supporter. However, the Authority found that this would not have attracted the attention of the Sri Lankan authorities. Of course, the Appellant’s claim was that he attracted the attention of the Karuna Group not the Sri Lankan authorities.
In relation to the claims the Appellant had made about the Karuna Group’s attacks on him in the 2012 election, the Authority took a different path. It accepted that:
·The Appellant had been threatened as he claimed whilst the President of the Asian Sports Club by the Karuna Group.
·The Karuna Group had subsequently beaten up the Applicant’s father badly when the Asian Sports Club had delayed in handing over the school and campaigning for the Karuna Group’s candidate.
·The Appellant had been robbed at gunpoint by four unknown men whilst handing out leaflets who threatened to kill him until they were interrupted when the police drove by. But the Authority was not satisfied that these gunmen were members of the Karuna Group. I interpolate that the Appellant’s account of this incident did not identify the gunmen as being members of the Karuna Group.
On the other hand, the Authority also concluded that the Appellant’s actions were ‘at odds’ with the level of fear he claimed. Here the reasoning was that since he had taken up campaigning for the TNA in 2012 after being harassed at the Arche Nova site, this suggested that he was not as afraid as he said he was. This is a curious finding but it does not appear to lead anywhere in the Authority’s reasons. On the facts the Authority appears to have accepted the Appellant’s claims in relation to the Karuna Group. I mention this anomalous statement only for completeness.
The Authority concluded, however, that the situation in Sri Lana had improved. The harassment which had occurred had taken place in the context of the 2012 election. It was not satisfied that the Appellant held a profile which would cause him trouble if he were returned to Sri Lanka. It did not accept that the Appellant would have membership of the LTTE imputed to him merely because he was Tamil or that he would face significant difficulties as a failed asylum seeker if returned to Sri Lanka. In those circumstances, the Authority concluded that the Appellant was not a refugee within the meaning of s 5H and, for largely identical reasons, that he had no claims for complementary protection either. It affirmed the delegate’s decision on 19 May 2017.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 13 June 2017 the Appellant applied for judicial review of that decision in the Federal Circuit Court of Australia. Three grounds were articulated: (a) the Authority had misapplied the test for whether a person is a refugee; (b) it had made a jurisdictional error because the Applicant would be targeted by the Karuna Group if he returned to Sri Lanka; and (c) the Authority had made another jurisdictional error because the Authority had not considered crucial and relevant issues about the Karuna Group, in particular, that it killed people discreetly. The originating application was accompanied by an affidavit which stated that the Appellant feared persecution if returned to Sri Lanka.
The matter had its first return date before the Federal Circuit Court on 14 September 2017 and the case was heard by Judge Humphreys on 19 June 2019 at Parramatta in Sydney. The Appellant was not represented. Having heard the case, Judge Humphreys delivered ex tempore reasons: COI17 v Minister for Immigration and Border Protection [2019] FCCA 1687.
The learned judge summarised first the Appellant’s claims for protection and the Authority’s treatment of them (at [2]-[9]) and then the contents of the notice of appeal ([10]). His Honour noted that the Appellant did not make any submissions to him before turning to a consideration of each ground of appeal. The first ground, it will be recalled, was that the Authority had misapplied the test for whether a person is a refugee. The particulars to this ground were as follows: ‘the IAA did not consider that the Applicant would be imputed with LTTE profile and as a result will face persecution’. His Honour found (at [12]) that the Authority had considered the Appellant’s claims and had concluded that he did not have an LTTE profile, that the Appellant had not pointed to any evidence that he did have such a profile in the Federal Circuit Court and that, in the circumstances, the Authority’s conclusion that he did not have such a profile ‘was rational and reasonable on the available evidence’. I share Judge Humphrey’s views on the reasonableness and rationality of the Authority’s determination that the Appellant did not have an LTTE profile. Although no point was taken about this in this Court it is well to observe that there was nothing in the first ground of review pursued in the Federal Circuit Court.
As to the second ground of review, his Honour treated this as if the allegation was that the Authority had failed to consider that the Appellant would be harassed by the Karuna Group and, in doing so, concluded that this allegation could not be sustained. With respect, this was correct. As to the third ground of review, his Honour pointed out that the Appellant had not explained what the material was and in that circumstance the ground could not succeed. Again, this reasoning is correct. Having dismissed each ground nominated in the originating application, the judge then dismissed the Appellant’s claims in that Court with costs.
THE PRESENT APPEAL
On 3 July 2019 the Appellant appealed to this Court. The case was eventually heard on 19 November 2019 and judgment reserved. At the hearing the Appellant was unrepresented. In his notice of appeal, the Appellant relied on four grounds of appeal. The first ground was that the Authority had referred to the Appellant’s claims that he had heard a lot of stories about Tamil people being taken away by the Karuna Group and abducted for ransom and that he even knew of one person who had been abducted and later found dead. The Authority then found at [16] that it did not see any connection between those events and the Appellant’s own circumstances. The ground of appeal was that this finding was in error, unsupportable by the evidence and unreasonable. There is substance to this complaint. The reason the Appellant had mentioned these stories of persons being abducted in his application was to show that Tamils were subject to the risk of being abducted by the Karuna Group. The circumstance which was relevant to his argument was the fact that the Appellant was a Tamil and hence subject to the same risk. By expressly finding that it was not shown that the circumstances of the abducted persons were the same as those of the Appellant, the Authority demonstrated that it did not understand the argument which was being put to it.
Further conceptual confusion is demonstrated at [37] of the Authority’s reasons where it appeared to accept, in part, the connection between the stories about other Tamils and the Appellant that it had rejected at [16]. That paragraph is as follows (footnotes omitted):
I accept that given the applicant’s observation of the treatment of his friend and the stories he has heard about the treatment and abduction of Tamils, he is concerned that he would be targeted and arrested on the basis of his ethnicity. However, country information indicates the situation for Tamils has improved since the applicant left Sri Lanka. DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Siresena Government. The United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka issued in 2012, states that in its opinion, originating from an area previously controlled by the LTTE does not of itself result in the need for international refugee protection.
The Appellant had mentioned three individuals in this part of his case. The first was a person he knew called K who had been taken in 2011 and returned after two months, having been beaten and tortured. The second was another man called U, who was taken between 2007 and early 2011. The third was a man named T who was never returned after he was taken and his body was later found. In addition, the Appellant referred to stories (a better word would be ‘reports’) he had heard about Tamil people, in general, being abducted. Contrary to the Authority’s statement, the Appellant had not said that K, U or T were his friends. He claimed only to know K and he did not expressly say that he knew U or T although it appears implicit in his account that he had some personal knowledge of them. Again, this suggests that the Authority had not fully grasped the material before it. On the other hand, the balance of [37] suggests that none of that matters because, regardless, as a result of the DFAT information, the Authority regarded the risk to Tamils as having decreased. Viewed in that context, even if the Authority had accepted in [16] what it appeared to accept in [37] (that is, the connection between the stories and the Appellant’s circumstances), the result would be the same because the Authority was not persuaded by any adverse actions towards Tamils at these earlier times as country information suggested the situation had improved. Arguably, the Authority’s misunderstanding of the argument put to it by the Appellant which is reflected in [16] on the face of it would constitute a jurisdictional error (Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 1092 [24] and 1102 [95]). However, as I alluded to above, the Authority’s error was not material and therefore cannot constitute a jurisdictional error: Minister for Immigration and Border Protection vSZMTA [2019] HCA 3; 264 CLR 421 at 433 [2] and 445 [45]. In that circumstance, it is not necessary to consider whether this ground should be entertained because it was not pursued in the Court below.
The second ground of appeal was concerned with Authority’s analysis that the position in terms of electoral violence had improved between 2012 and 2015. In that regard the Authority had made this statement at [33] (footnotes omitted):
The applicant confirmed at his visa interview that since his departure from Sri Lanka, he has not engaged in any political activity and had reduced his profile while in Australia. Although, he made no express statement about his intention to resume political activities on return to Sri Lanka, I accept that given his family background and personal circumstances, this could occur. The applicant confirmed to the delegate that while his family continued to be politically engaged, they had not encountered any problems since his departure. It was put to the applicant by the delegate that the security and political circumstances in Sri Lanka had significantly changed since 2012. The Centre for Monitoring Election Violence (CMEV) identified that, compared with elections day in 2010, instances of election-related violence on election day in the parliamentary and presidential elections in 2015 had reduced. CMEV also stated that polling in the 2015 General election had been largely peaceful and without hindrance. In the August 2015 parliamentary elections, the TNA secured sixteen seats and also currently leads the Opposition in Parliament. The delegate also put to the applicant country information that indicates the Karuna Group and the TVMP have been demilitarised with no indication that the Karuna Group has been active as paramilitary group since 2014.
The second ground contended that the Authority had failed to consider information apparently to the contrary. This was quoted in the notice of appeal as follows:
At the end of polling, CMEV has recorded a total of 316 incidents. Of these, while 109 have been categorized as Major Incidents, 196 Minor Incidents have also been reported. The highest number of Major Incidents relate to the intimidatory presence of party supporters in the vicinity of polling centres. Four (4) incidents of Threat and Intimidation in the polling divisions of Pathadumbara in Kandy, Medawachchiya in Anuradhapura, Kopay in Jaffna and Eheliyagoda in Ratnapura respectively were also reported along with 01 incident of Assault from Nawalapitiya in the Kandy district.
(page 57)
It is not clear where this quote comes from. I have been unable to find it in any of the appeal papers and I was not taken to it. It appears to be from the same entity as the reports relied on by the Authority, the Centre for Monitoring Election Violence (‘the CMEV’). Since this information does not appear to have been before the Authority or the delegate or, more precisely, because it was not shown that it was, this argument does not really get off the ground. For completeness, I have been unable to identify what the reference to ‘page 57’ is. Assuming, for the sake of argument, that there is such a CMEV report and that it was available to the Authority as part of the country information which it had access to, there is still the problem that (a) it is not self-evidently about the same area or election and (b) it is not clear whether the Appellant is relying on the unidentified major and minor incidences at unspecified locations or the location-specific incidents. As such, there is simply not enough material to raise this issue beyond a suspicion that there might be more to it than meets the eye. That, however, is not the requisite standard. Accordingly, I reject ground 2. Again, that renders it unnecessary to consider whether this matter, which was not raised below, can be raised in this Court for the first time.
Ground 3 was that in assessing the risk to the Appellant as low should he engage in future political activity in Sri Lanka the Authority had relied on unidentified country information. This is not so. In the second sentence of the critical paragraph ([34]) the Authority did say that the Appellant faced no real chance of being persecuted for his political activities and it did do so only by apparent reference to ‘the country information’. However, the preceding sentence identified the country information as ‘the country information before the delegate’ and it is clear that the former is a reference to the latter. In the delegate’s reasons she set this country information out in the following terms:
In 2015 DFAT reported that Sri Lankan authorities remain sensitive to potential re-emergence of the LTTE; those at highest risk of arrest, detention or prosecution are the LTTE’s former leadership. Although many high-profile members may have already been released following their detention and prosecution, any other high-profile members who return to Sri Lanka would likely be arrested, detained and prosecuted. DFAT assesses that the great majority of low-profile former members have already been released following their detention and rehabilitation. Those undergoing later rehabilitation may be monitored but generally are not prosecuted, after their release.
DFAT assess that, given the cessation of the forced registration of Tamils, 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 by authorities. In March 2015 President Sirisena did not renew certain police powers granted to the military, making military checkpoints in the north technically illegal.
In January 2015 President Sirisena swore in a new Tamil chief justice of the Supreme Court - the first Tamil chief justice in more than two decades. In May 2015 authorities allowed some gatherings in the Northern and Eastern provinces to commemorate those killed in the war for the first time since 2009, and the president renamed 'Victory Day' to 'Remembrance Day' and permitted the singing of the national anthem in both Sinhala and Tamil. In November the government removed the ban on eight Tamil diaspora organizations and 267 individuals on the terrorism watch list established by the previous government.
In October 2015 the UN Human Rights Commission adopted a resolution which asked the UN High Commissioner for Human Rights to provide technical assistance to the government. In contrast to the previous government, the administration permitted visits by UN staff of varying senior levels. The Office of National Unity and Reconciliation was charged with coordinating the government’s efforts toward reconciliation, and the government implemented a number of confidence-building measures to address grievances of the Tamil community. I have also considered the UK Home Office report on Tamil separatism in Sri Lanka dated 19 May 2016, which states that in general a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport, would not warrant international protection.
In October 2015 the UN Human Rights Commission adopted a resolution which asked the UN High Commissioner for Human Rights to provide technical assistance to the government. In contrast to the previous government, the administration permitted visits by UN staff of varying senior levels. The Office of National Unity and Reconciliation was charged with coordinating the government’s efforts toward reconciliation, and the government implemented a number of confidence-building measures to address grievances of the Tamil community. I have also considered the UK Home Office report on Tamil separatism in Sri Lanka dated 19 May 2016, which states that in general a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport, would not warrant international protection.
This passage in the delegate’s reasons was referenced in footnotes 6 to 12 which identified the country information as consisting of the following:
CISEC96CF14143: “DFAT Country Information Report Sri Lanka”, 18 December 2015, 3.43.
CISEC96CF14143: “DFAT Country Information Report Sri Lanka”, 18 December 2015, 3.9.
CISEC96CF14143: “DFAT Country Information Report Sri Lanka”, 18 December 2015, 3.37.
OGD95BE926320: US Department of State, “Sri Lanka - Country Report on Human Rights Practices 2015”, 13 April 2016, Section 2b.
OGD95BE926320: US Department of State, “Sri Lanka - Country Report on Human Rights Practices 2015”,13 April 2016, Section 5.
OGD95BE926320: US Department of State, “Sri Lanka - Country Report on Human Rights Practices 2015”,13 April 2016, Section 6.
OGD7C848D17: UK Home Office, “Sri Lanka: Tamil separatism. Version 2.0”, 19 May 2016, Section 3.
In that circumstance, there is no substance in the contention that the country information was not identified.
In ground 3 it was also said that the failure of Authority to identify country information at [34] of its reasons resulted in other errors. These were that the finding was unreasonable and such that no reasonable decision maker could make it. Given that the Authority was referring to the country information identified by the delegate the premise for the submissions is not made out. The country information and materials before the Authority supported an assessment that the risk to the Appellant was low should he engage in future political activity in Sri Lanka. I would dismiss ground 3 without considering whether it required a grant of leave because it was not raised in the Court below.
Ground 4 was a submission that the Authority had given no reasons for concluding that there was no real chance of the Appellant suffering serious harm given that his claims included being harassed by the Karuna Group and that he was a campaigner for the TNA. However, this is not so. At [34] the Authority noted that five years had passed since the incidents and that they had occurred in the context of the 2012 election. Further, at [36] the Authority stated that there were changed political circumstances in the Eastern Province (where the Batticaloa district is) including the fact that the Karuna Group now had a ‘non-active status’. It seems irresistible that these constitute reasons for its conclusion. I would dismiss ground 4 again without considering whether it needed a grant of leave.
The Appellant was unrepresented at the hearing in this Court. He impressed upon me the following points: (a) the most recent developments in Sri Lanka showed that if he were returned it would be a real problem; (b) the Karuna Group was now in power; and (c) consequently, he would very much be placed in danger. The Counsel for the Minister, Ms Hooper, submitted that these matters were irrelevant in a judicial review action. I would hesitate to say absolutely that events subsequent to a decision (such as these) are irrelevant in a judicial review action. However, because the material to which the Appellant referred was not before the Authority it is difficult, in this case, to see how they can demonstrate error on its part. I accept the Minister’s submission.
In that circumstance, I must dismiss the appeal with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 21 February 2020
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