DPM16 v Minister for Immigration and Border Protection
[2018] FCA 249
•9 March 2018
FEDERAL COURT OF AUSTRALIA
DPM16 v Minister for Immigration and Border Protection [2018] FCA 249
Appeal from: DPM16 v Minister for Immigration & Anor [2016] FCCA 3200 File number: NSD 415 of 2017 Judge: KATZMANN J Date of judgment: 9 March 2018 Catchwords: MIGRATION — Refugees — application for protection visa — whether the Immigration Assessment Authority failed to take into account a claim or an integer of a claim — whether the Authority failed to consider “the fluid political situation” in the appellant’s country of nationality when determining whether he had a well-founded fear of persecution — application of the “real chance” test — whether the Authority erred in equating a low risk of detention with the absence of a real chance of persecution Legislation: Migration Act 1958 (Cth), ss 5J, 5H, 36(2)(a), 36(2)(aa) Cases cited: Appellant 395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; 197 ALR 398; 78 ALD 321
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 U.S 421
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 55
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Date of hearing: 27 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: Ms Z Shahnawaz Solicitor for the First Respondent: Ms S A Given of HWL Ebsworth Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 415 of 2017 BETWEEN: DPM16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The appellant is a Sri Lankan national of Tamil ethnicity who, until his illegal departure from the country, lived in a former stronghold of the Liberation Tigers of Tamil Eelam (LTTE). He unsuccessfully applied to the Minister for Immigration and Border Protection for a protection visa and the Immigration Assessment Authority affirmed the Minister’s decision. He then sought judicial review of the Authority’s decision, but he failed to persuade the primary judge that the Authority had made any reviewable error. In the result, his Honour ordered that the application for judicial review be dismissed. This is an appeal from those orders.
The issues on the appeal have narrowed since the High Court’s decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936. The appellant has abandoned the first ground, the outcome of which depended on the fate of that decision. The primary judge is now said to have erred by failing to find that the Authority committed jurisdictional error in two, rather than three, respects: first, by overlooking the appellant’s submission that the political situation in Sri Lanka was “fluid” (ground 2 of the notice of appeal); and second, by equating a low risk of detention of Tamils from the former LTTE areas of the country with “an absence of a real chance of detention and persecution” (ground 3 of the notice of appeal).
On the first question, the primary judge accepted a submission from the Minister that the appellant had not claimed to fear harm because of the fluid political situation and that no such claim reasonably arose on the material before the Authority. His Honour held at [43] that “[o]n a fair reading of the reasons, after referring to the 2012 incident and then focusing upon since (sic) the 2012 elections, there was no failure by the Authority to take into account an essential integer of the [appellant’s] claims”.
On the second question, the primary judge noted that counsel for the appellant had taken the court to the relevant authorities, observing that the assessment of a well-founded fear of persecution “does not turn on a probability exercise and that one could have a risk that is less than 50 per cent and is still a well-founded fear”. His Honour then said (at [45]):
If the Authority had not correctly set out the relevant law and had not proceeded to make findings in its reasons that reflect an application of that law, there would be force in Mr Zipser’s submission in the present case. However, on a fair reading of the Authority’s reasons, the Authority was identifying what country information established and it was open to the Authority to take into account that country information. This is not a case where the Authority has failed to correctly apply the real chance test.
Was “the fluid political situation” a part of the appellant’s claim? Did the Authority fail to consider it?
The appellant’s claim was described by his migration agent in a submission to the Minister as follows:
[The appellant] is outside his country of nationality, and owing to a well-founded fear of persecution on the grounds of his:
•Race as a Tamil;
•Membership of a particular group as a Tamil man from a former LTTE-controlled area and imputed with a political opinion of support for the LTTE and/or opposing the government due to the area from where he originates;
•His support for the Tamil National Alliance (TNA) political party and persecution by the Criminal Intelligence Department (CID – military intelligence), and rival political groups, possibly pro-government paramilitary groups who operate with impunity;
•Having failed to seek asylum and protection in Australia and for illegally leaving the country; and
•He is unable or unwilling to avail himself of the protection of that country as the state and non-state actors are the persecutors.
The “fluid political situation” was not a claim per se. As counsel for the appellant put it, however, it was an important part of the consideration of the appellant’s claim to have a well-founded fear of persecution.
A failure to take into account a claim or an “integer” of a claim will amount to jurisdictional error; the decision-maker will not have completed its jurisdictional task: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] and [44] (Allsop J, Spender J agreeing at [1]). Moreover, and perhaps more pertinently, the failure of a decision-maker “to respond to a substantial, clearly articulated argument relying upon established facts” is also a jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; 197 ALR 398; 73 ALD 321 (Gummow and Callinan JJ) at [24].
One of the principal criteria for the grant of a protection visa is that the visa applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the applicant is a refugee: Migration Act, s 36(2)(a). An alternative criterion, commonly referred to as the complementary protection criterion, contained in s 36(2)(aa), is not presently relevant. At the time of the Tribunal’s decision, “refugee” was relevantly defined in s 5H(1) as a person who is outside his or her country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country. For the purposes of the application of the Act and the regulations, and subject to a number of exclusions, a person has a “well-founded fear of persecution” if all of the following conditions are met:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
See Migration Act, s 5J(1).
The Authority was required to decide whether there was a real chance of harm being caused to the appellant for any of the Convention reasons set out in paragraph (a) not only at the time of the decision but also in the reasonably foreseeable future: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ. The fluidity of the political situation was directly relevant to that chance.
In a written statement made on 5 February 2016 and submitted to the Minister with his visa application, the appellant said he was a Sri Lankan citizen of Tamil ethnicity and the Catholic faith. He claimed that, after attending a meeting of the Tamil National Alliance (TNA) in August 2012, shortly before elections in the Eastern Province, he was injured in a savage assault by a number of people who appeared to be supporters of a rival political party. That claim was supported by a medical report and accepted by the Tribunal. The appellant said that he was frightened that his assailants would pursue him and he feared for his safety. He said that while he was in hospital his grandmother told him she had been threatened by four or five people who asked for his whereabouts. He also expressed a belief that he would be tortured and detained by the government if he were to return to Sri Lanka because he had left the country illegally. He said, notably for present purposes:
If I am forced to return to Sri Lanka, I fear that I will be subjected to serious harm. There is no guarantee for my safety. It is uncertain. I do not know exactly but they may torture, imprison or kill me.
(Emphasis added.)
He repeated his concern about the “uncertainty” later in his statement. Without more, this would not be sufficient to support his contention. The reference to uncertainty is ambiguous. It might relate to his state of mind rather than the political climate. But there was more — a good deal more.
In a written submission made on 21 July 2016, following an interview with the Minister’s delegate, the appellant’s migration agent wrote:
The current situation in the Democratic Republic of Sri Lanka is fluid and one characterised by ongoing human rights concerns, such as issues with post-conflict justice, torture and mistreatment, disappearances, white van abductions, arbitrary detention and freedom of expression.
Read as a whole, at least one obvious purpose of the submission was to convey to the delegate that, despite the end of the civil war in 2009 and the change of government in 2015, the political situation in Sri Lanka was not stable, and that Tamils in particular remained at risk of serious harm. The submission referred to a number of recent reports (such as the report of the UN Special Rapporteur on torture published in May 2016, reports of the US Department of State in 2014 and 2015, and a 2016 report of the International Truth and Justice Project), all of which were said to demonstrate the continued persecution of Tamils. The submission also referred to widespread reports of both state and non-state actors (armed paramilitary groups) operating within “a culture of impunity”, the latter deployed to create fear, persecute Tamils, and suppress political opponents. The source cited for these reports was a publication of the Human Rights Watch organisation only six months earlier. On the face of things, these reports constituted powerful independent evidence supporting the appellant’s claim to have a well-founded fear of persecution for Convention reasons.
Concerns were raised in the submission about the renewed persecution of Tamils by foreshadowing potential changes in the political climate:
Current country information shows the regime of President Sirisena has become paranoid about the ‘re-grouping’ of pro-Tamil separatists.
A well-reasoned, clearly articulated position was put that, notwithstanding the change of government, the essential structures of government remained the same. The significance of this was that the situation for Tamils could change at any time:
Whilst there has been a change of government since our client’s departure there has been no change in Sri Lanka’s essential structure of governance which has been described as a State with governance based on nepotism and no notable change in a longstanding pattern and prevalence of human rights abuses by successive governments.
There is no temporal aspect to the accepted narrow risk profile that only people who were suspected of LTTE affiliation because of previous activities and where they lived, or fled the country to seek protection will be at risk of harm.
…
Tamils returning from overseas are under surveillance and clearing the airport is no guarantee of future safety.
(Original emphasis.)
The independent evidence relied upon to support the submission included a March 2015 report by an English barrister and member of a UN panel of experts on the situation since the end of the civil war. Its conclusion was that “abduction, arbitrary detention, torture, rape, and sexual violence [against Tamils] have increased in the post-war period”. The submission also highlighted a US State Department report from July 2015 of unlawful killings by security forces and government aligned paramilitary groups, “often in predominantly Tamil areas” with a disproportionate number of Tamil victims. It referenced, too, reports from a number of sources of torture or other cruel or inhuman treatment of failed asylum seekers. It drew attention to a report of the Asian Human Rights Commission, published in June 2014, which described torture as “part of the day-to-day operation of the Sri Lankan state”. The Commission concluded that the “democratic, rule-of-law-based system” that previously existed in Sri Lanka had been systematically undermined such that the rule of law had now collapsed and an alternative system based on state (or state-sanctioned) violence was entrenched in the country. It considered that there were no reasonable grounds to believe that torture would be brought to an end and all indications were that the problem “will increase due to the impunity enjoyed by the perpetrators”.
If anything, the appellant’s counsel, Ms Shahnawaz, understated the position when she submitted that “the whole crux of this 11-page submission on behalf of the appellant is that it is dedicated to showing that the present conditions in Sri Lanka, or as they then were [in 2016], were fluid and characterised by ongoing human rights concerns”.
The volatile political situation was also a focus of the submissions to the Authority on the review. Those submissions, which incorporated by reference the previous submissions and evidence, including the independent country information, began by stating (lest the message was not clear enough) that this material “demonstrates the real risks faced by persons forced to return to Sri Lanka who hold or have been imputed with a pro-LTTE and anti-Government political opinion”.
Ms Shahnawaz drew attention to the section of the submission entitled “Future risk of Torture for Imputed association to the TNA” and the following parts of it in particular:
We assert that the current situation in Sri Lanka demonstrates that TNA are increasingly being viewed as pro LTTE and anti-government.
The recent rise in tensions between Tamils and the Sri Lankan government has led news outlets to report that new waves of violence may erupt as indicated by the large protests across Sri Lanka on 24 September 2016.
…
Additionally TNA has publicly voiced its disapproval of the Sri Lankan government’s new Prevention of Terrorism Act (PTA), which will no doubt contribute to increasing hostilities and perception that TNA is challenging authorities.
(Emphasis added.)
Ms Shahnawaz also drew attention to the reference in the submission to the shooting of two Tamil students by the police as recently as October 2016 (the same month as the submission) and the ensuing large scale protests and strikes in the Northern Province of Sri Lanka. As it was put in the submission:
The information suggests a worrying pattern of worsening tension between TNA and Sri Lankan authorities. The Sri Lankan Government continues to maintain that an LTTE revival is a threat and that the government intends to continue close monitoring of Tamils in the Northern and Eastern Province of Sri Lanka in the foreseeable future. We submit that this renewed climate of fear and suspicion of Tamils amongst the Sri Lankan military means that the factors which make up [the appellant’s] profile will increase his chances of being drawn to the adverse attention of authorities if returned to Sri Lanka.
Given the recent escalation in tensions between the Sri Lankan authorities and Tamils, there are serious reasons for considering that violence will again engulf the country[.] [T]his will lead the Sri Lankan government officials to strengthen their responses to perceived extremists. Such control measures will increase the risk of harm to [the appellant] due to his perceived anti-government profile.
(Emphasis added.)
In these circumstances, the Minister’s submission and the primary judge’s conclusion that the appellant made no claim to fear harm because of the fluid political situation are, with respect, untenable.
In this Court, the Minister’s initial response to the appellant’s argument was to make a complaint about the careful way the appellant had taken the Court through the evidence. He submitted that this was not the approach taken in the court below. He referred to a remark of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] (where his Honour was in dissent about the approach to be taken by a court reviewing a decision of the Refugee Review Tribunal). The Chief Justice noted that proceedings before the Tribunal were not adversarial and the issues were not defined by pleadings or any similar process. Nevertheless, his Honour remarked:
this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
The remark, however, was not apposite. The argument presented on the appeal was not a contrivance of the appellant or his lawyers after the Authority’s decision. Nor was it a recasting of the submission made in the court below, as the Minister later conceded.
The more difficult question is whether the Authority in fact overlooked the volatile political situation when it considered “the reasonably foreseeable future”.
The appellant accepted that the Authority “turned its mind” to the reasonably foreseeable future, but submitted that it did not take into account the so-called fluid political situation, that is, the circumstance that “political developments concerning human rights and civil rights can move in different directions, including backwards”.
The submission stands in the face of the Authority’s recognition (at [7]) that the October 2016 submission introduced new information focussing on “the recent escalating hostilities in Sri Lanka which establishes that support for the TNA will be viewed as supporters of Tamil separatism” and the Authority’s statement that it had had regard to that information. This statement was borne out by the Authority’s discussion of some of the matters raised by the submission, particularly at [19] where the Authority said this (without alteration):
I have had regard to the post-interview submission from the applicant’s representative in which she refers to “current country information shows that the regime of President Sirisena has become paranoid about the ‘re-grouping’ of pro-Tamil separatists”. The IAA submission refers to a number of recent activities involving the TNA taking public statements about various matters, such the parties disapproval of the Prevention of Terrorism Act, and condemnation of the recent shooting of two Tamil youths by the police. I note the IAA submission states that news outlets are reporting “that new waves of violence may erupt as indicated by the large protests across Sri Lanka”. I accept that the government continues to pursue any activity that indicates the resurgence of the LTTE. However there is no indication that the applicant’s low level activity within the TNA in 2012 would lead to a real chance of harm on return to Sri Lanka, either on the basis of his past activity or any future involvement. The applicant attended one meeting and pasted two election posters and, while this could account for harassment at the time, I am not satisfied that he would be of interest to opposition parties, the authorities or paramilitary groups now. Country information indicates that various parties sought to disrupt the election campaigns of their opponents with the aim of hampering the campaigns of their opponents. Country information does not support ongoing harassment of people with low profile political involvement, such as the applicant. I note that since the visit to his grandmother in 2012 there has been no ongoing interest in the applicant.
(Emphasis added.)
The first reference to country information in the third last sentence of this paragraph was to a February 2013 paper of the Refugee Review Tribunal. The second reference in the penultimate sentence was to a US State Department report of 25 June 2015.
Furthermore, later in its reasons (at [22]) the Authority said:
I accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, and I have had regard to the country information provided by the applicant’s representative. There are credible reports of ongoing arrests, including arrests under the Prevention of Terrorism Act, however the country information indicates these people as coming to attention because of their LTTE links. I accept that those arrested and taken into detention are predominantly Tamils, however I note that DFAT primarily attributes this to LTTE members being mostly Tamil. In the applicant’s case, he was not involved with the LTTE and has no LTTE links. I do not accept that by being Tamil and from Batticaloa he has been imputed with an LTTE profile. I note that he was able to obtain a passport in 2006 and travel to and from Sri Lanka in 2011 and 2012 without attracting the adverse attention of the authorities.
(Emphasis added.)
The reference to country information in this paragraph was to a December 2015 DFAT report.
In the light of these passages of the Authority’s reasons, I am not persuaded that the primary judge erred in dismissing this ground of appeal. The Authority appears to have taken on board the appellant’s submission about the fluid political situation and its significance. It simply concluded — rightly or wrongly — that, in the absence of any involvement with or connection to the LTTE, Tamils like the appellant were not at risk.
It is true, as Ms Shahnawaz pointed out, that the Authority referred a number of times to the present (that is, the then current) situation, saying:
·it was not satisfied that the appellant would be of interest to opposition parties, the authorities or paramilitary groups “now” (at [19]);
·there is no real chance of harm befalling the appellant arising from his activities in 2012 or if he were to support the TNA on his return where, once again (at [20]) the Tribunal used the adverb “now”;
·“the DFAT and UNHCR reports demonstrate that Tamils from the former LTTE areas are at low risk of being questioned or detained by the authorities simply for being Tamil” (at [21]); and
·“DFAT advises that monitoring of Tamils from former LTTE areas has decreased under the new government” (also at [21]).
These statements do refer to the present or are couched in the present tense. Still, the present situation, like the past, was relevant to the assessment of future risk. After all, the assessment of future risk is “a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (FC) at [33]. Furthermore, it is well to remember that in an application for judicial review courts are not concerned with “looseness in the language” of an administrative decision-maker’s reasons or with “unhappy phrasing” of the decision-maker’s thoughts: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
In any case, the statements in question cannot be read in isolation. At [39] the Authority said that it was not satisfied that the appellant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker who had departed Sri Lanka illegally “now or in the foreseeable future”. And, at [40] of its reasons, the Authority said:
I am not satisfied that the [appellant] faces a real chance of persecution now or in the reasonably foreseeable future, whether because of his illegal departure, having made a claim for asylum in Australia, for his involvement with the TNA in the 2012 election or any future political activity, any perceived links to the LTTE, as a Tamil from a former LTTE controlled area, his psychological condition and vulnerabilities, the robbery of his mother, or any combination of these. The [appellant] does not have a well-founded fear of persecution within the meaning of s 5J.
The appellant dismissed these passages as “formulaic”. I cannot accept that submission. I do not regard the reference to the foreseeable future in either or both of these two paragraphs as an incantation of a formula or the use of a “formula to cloak [an invalid] decision with the appearance of conformity with the law”: Wu Shan Liang at 266. Rather, I consider the reference to the reasonably foreseeable future as both a recognition of the correct test and an acknowledgment by the Authority that, although it had had regard to the present circumstances in determining the prospect of persecution, it had also considered those that may arise in “the reasonably foreseeable future”.
Thus, notwithstanding the absence of an explicit recognition of the possibility that the current political situation could deteriorate at any time, I am not persuaded that the Authority’s references in its reasons to the present state of affairs signify that it ignored the evidence of the so-called fluid political situation and focussed on the present to the exclusion of that which might exist in the reasonably foreseeable future.
Ground 2 of the notice of appeal should therefore be dismissed.
Did the Authority equate a low risk of detention with the absence of a real chance of persecution?
The effect of the appellant’s argument is that the Authority misunderstood the test for determining the risk of harm. The complaint relates to a statement made during the Authority’s consideration of the appellant’s claim to fear persecution on the basis that he was a Tamil from a former LTTE-controlled area.
The impugned statement is at [21] of the Authority’s reasons, a paragraph to which I have already referred:
The DFAT and UNHCR reports demonstrate that Tamils from the former LTTE areas are at low risk of being questioned or detained by the authorities simply for being Tamil[.]
It is beyond doubt that a low risk may amount to “a real chance” of harm. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in which the real chance test (now expressly incorporated into the Migration Act) was first propounded by the High Court, McHugh J pointed out at 429 that the jurisprudence of both the House of Lords and the United States Supreme Court had established that a fear may be well-founded for the purpose of the Convention (as amended) even though persecution is unlikely to occur. Indeed, as his Honour observed, in Immigration and Naturalization Service v Cardoza-Fonseca (1987), 480 U.S. 421, the United States Supreme Court said that an applicant for refugee status may have a well-founded fear of persecution although the chance of persecution is only in the order of 10 per cent. In Chan at 389, Mason CJ expressed his preference for the expression “a real chance” in part because “it clearly conveys the notion of a substantial, as distinct from a remote chance”. He explained that:
If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has a fear, is well founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.
Dawson J was of the same opinion: 169 CLR at 398.
In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572 the plurality (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, and Gummow JJ) said that “Chan shows [that] a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate”.
The difficulty with the appellant’s point, however, is that the Authority did not find that the appellant’s chances of persecution were low.
First, when the Authority referred to a “low risk” at [21], it was referring to a low risk of interrogation or detention, not to a low risk of persecution. Indeed, the appellant complained in his written submissions that the Authority did not ask itself whether being questioned or detained by the authorities could amount to persecution. That submission is at odds with the notion that the Authority equated a low risk with the absence of a real chance of persecution.
Secondly, the Authority used the expression “low risk” to describe the conclusions of certain reports, not its own conclusions. While it took those conclusions into account and, no doubt, gave them a great deal of weight, I am not persuaded that the Authority treated a low risk of interrogation or detention as synonymous with the absence of a real chance of persecution. Later in its reasons (at [26]), when considering another aspect of the appellant’s case, the Authority disclosed that it was conscious of what was involved in the assessment of risk. There, the Authority stated:
I consider the chance of the [appellant] being a victim of such an attack to be remote. I find this attack was a random act of violence and does not indicate a real chance of serious harm for the [appellant].
The complaint that the Authority failed to ask whether being questioned or detained by the authorities could amount to persecution is outside the scope of the notice of appeal. In any case, the effect of the Authority’s reasoning on the appellant’s claim that he had a well-founded fear of persecution because he was a Tamil from a former LTTE area is this: while Tamils are at risk of arbitrary detention and harm at the hands of security forces, there is no real chance that the appellant would be at risk of arbitrary detention or come to harm because that chance only affects LTTE members or Tamils with suspected links to the LTTE and the appellant has no such “profile”.
I am not persuaded that the use of the expression “low risk” in [21] of the Authority’s decision involved an erroneous application of the real chance test. It follows that ground 3 of the appeal must also be dismissed.
Conclusion
Despite the eloquence of the argument deployed in the presentation of the appellant’s case, neither of the grounds he pressed has been made out. Consequently, the appeal must be dismissed. Costs should follow the event.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 9 March 2018
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