EGY18 v Minister for Home Affairs

[2019] FCCA 1874

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGY18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1874

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in significant respects and other fears found not to be well-founded – whether the Authority failed to consider relevant material or misapplied the real chance test considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 36

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

AEW18 v Minister for Home Affairs [2019] FCA 208

AKG16 v Minister for Immigration [2016] FCA 1576

APK15 v Minister for Immigration & Anor [2016] FCCA 2190

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

BPC16 v Minister for Immigration [2018] FCA 920

BZC17 v Minister for Immigration [2018] FCA 902

CDW18 v Minister for Home Affairs [2019] FCA 270

Chan v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379

DVB16 v Minister for Immigration [2018] FCA 1682

DGZ16 v Minister for Immigration [2018] FCAFC 12

DSF17 v Minister for Home Affairs [2019] FCA 243

Minister for Immigration v DDK16 [2017] FCAFC 188

Minister for Immigration v EEI17 [2018] FCAFC 166

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v SZQKB [2012] FCA 1189

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

MZYXR v Minister for Immigration [2013] FCA 252

NAHI v Minister For Immigration [2004] FCAFC 10

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16; 92 ALJR 481

QAAT v Minister for Immigration (2005) 149 FCR 299

Randhawa v Minister for Immigration (1994) 52 FCR 437

SZMUF v Minister for Immigration [2009] FCA 182

SZQPA v Minister for Immigration & Anor [2012] FMCA 123

SZTEX v Minister for Immigration [2014] FCA 1269

SZTZY v Minister For Immigration [2018] FCA 911

Tickner v Chapman (1995) 57 FCR 451

Applicant: EGY18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2304 of 2018

Judgment of: Judge Driver

Hearing date: 5 July 2019

Delivered at: Sydney

Delivered on: 5 September 2019

REPRESENTATION

Solicitors for the Applicant: Mr R Selliah of Rasan T Selliah & Associates

Solicitors for the Respondents: Ms K Morris of Clayton Utz

ORDERS

1. The amended application filed on 23 April 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2304 of 2018

EGY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 August 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Sri Lanka who, relevantly:

   a)arrived in Australia at Christmas Island on 13 October 2012 as an unauthorised maritime arrival;[1]  and

   b)met the requirements of the definition of a “fast track applicant” under s.5(1)(a)(i)-(iii) of the Migration Act 1958 (Cth) (Migration Act) and therefore his application was subject to, and governed by, Part 7AA of the Migration Act.

4. On 8 February 2013 the applicant participated in an “entry interview”.[2]

5. Between October 2012 and February 2013 the applicant was in detention centres, following which he was granted a temporary visa and released into the community on the Australian mainland.

6. On 7 December 2015[3] the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV). The application included a typed statement by the applicant which set out his claims.[4]

7. On 27 February 2018 the applicant participated in an interview with the delegate.[5] Some of the applicant’s evidence is set out in the delegate’s decision dated 20 April 2018.

8. On 13 March 2018 the applicant’s agent sent post-interview submissions to the Minister’s Department.[6]

9. On 20 April 2018 the delegate made a decision refusing to grant the applicant a SHEV.[7]

10. On 27 April 2018 the Authority informed the applicant that the Minister’s decision had been referred to it for review. The letter provided the applicant with information about the Authority.[8]

Claims before the Authority

1. The applicant claimed to fear harm from the Sri Lankan government, Army and Central Intelligence Department (CID) by reason of his status as a young Tamil male with Liberation Tigers of Tamil Eelam (LTTE) connections and/or who would be imputed with LTTE connections. In particular, the applicant claimed that:[9]

   a)his father assisted and worked for the LTTE, and had been confronted, threatened, and shot at by the CID and the Eelam People’s Democratic Party (EPDP);

   b)his brother was a member of the LTTE and disappeared around 2008;

   c)he was forcibly recruited by the LTTE as a child soldier in 2008, given some training, took part in a battle, and eventually escaped;

   d)after the war his family were visited by the CID, his father was questioned and detained, and he was questioned five or six times;

   e)he subsequently went into hiding before escaping to Malaysia in September 2012, using a photo-substituted Sri Lankan passport in another man's name;

   f)in 2017 his father was again visited by the CID and pushed to the ground, and spent time in hospital as a result;

   g)his uncle and one or more cousins/cousin-brothers were LTTE members/supporters; and

   h)since arriving in Australia he has attended a number of LTTE “Martyrs Day” commemoration ceremonies.

Authority decision

New information

1. The Authority noted that it had obtained a new Department of Foreign Affairs and Trade (DFAT) country information report that was published after the delegate’s decision but otherwise had not received any new information from the applicant.[10]

Protection claims

1. The Authority accepted certain aspects of the applicant’s claims, including that:

   a)he was a Tamil from the Northern Province of Sri Lanka and a Roman Catholic Christian;[11]

   b)his father supported the LTTE, by providing food, working as a sentry, and digging trenches and bunkers;[12]

   c)his family was displaced as a result of the war;[13]

   d)his brother joined the LTTE in 2006 or 2007 and disappeared in 2008;[14]

   e)the applicant himself was forcibly recruited into the LTTE, briefly trained, deserted his unit, and was injured;[15]

   f)his family was questioned whilst in a displacement camp;[16] and

   g)other family members may have joined the LTTE.[17]

2. However, the Authority did not accept other aspects of the applicant’s claims and found that:

   a)his father was only a casual labourer and not an LTTE cadre or member;[18]

   b)his father had not been shot at by the EPDP (finding that this was "an embellishment to enhance his claims");[19]

   c)his family had not been particularly targeted and that the applicant had not been harmed, mistreated, or tortured whilst in the displacement camp;[20]

   d)the applicant did not have any ongoing connection with extended family members who may or may not be LTTE members;[21]

   e)his father had not been taken away by the CID nor had the applicant gone into hiding;[22] and

   f)any questioning or visits by the CID were nothing more than "the continued suspicion that attaches to the Tamil community" rather than specific interest in the applicant or his family.[23]

3. The Authority also found that the applicant had given evidence that was “contradictory at times”,[24] which “advanced a number of conflicting claims”,[25] and which was at times “implausible”.[26]  The Authority did not accept that this was the result of poor legal advice or memory difficulties, and instead found that this was because certain events did not happen as claimed.[27]  Ultimately, the Authority found that the applicant and his father were not perceived to be a threat due to LTTE links[28] and that he and his family were not of any particular adverse attention by or to the authorities.[29]  As to the applicant’s other claims, the Authority accepted that the applicant had departed Sri Lanka by air on a photo-substituted passport.[30]  The Authority did not accept that the applicant had attended pro-LTTE activities since arriving in Australia and found that this was an embellishment to enhance his protection claims.[31]

4. Ultimately, on the basis of these findings and by reference to country information,[32] the Authority held that it was not satisfied that the applicant would face adverse attention from the authorities or be harmed on return by reason of his ethnicity, origin from the Northern Province, or personal LTTE links.[33]  The Authority accepted that as a returning asylum seeker the applicant may be the subject of some surveillance and stigma, but did not regard this as amounting to serious harm.[34]  The Authority further accepted that the applicant might be identified as an illegal departee by reason of having used a falsified passport, and might be subject to sanctions under the Immigrants and Emigrants Act (Immigrants and Emigrants Act), however found that this would not amount to serious harm and that the Immigrants and Emigrants Act was not applied in a discriminatory manner.[35]

5. On these bases, the Authority was not satisfied that the applicant was a person to whom Australia owes protection obligations by virtue of s.36(2)(a)[36] or (aa).[37]

The current proceedings

1. These proceedings began with a show cause application filed on 20 August 2018.  The applicant now relies upon an amended application filed on 23 April 2019.  There are three grounds in that application:

   1. The second respondent (the IAA) failed to conduct its review pursuant to s. 473CC of the Migration Act, according to law.

   Particulars

   (a) Failure to consider information that was before it, pursuant to s. 473DB of the Migration Act, to the effect that:

   (i)      failure to consider country information stated in the submission to the Delegate (CB 110-123).

   (ii)     Failure to consider the UNHCR eligibility guideline which was considered by the delegate (CB 135)

   (b) The second respondent failed to consider the applicant's claims cumulatively.

   (e) Failure to consider claims, or integers of claims.

   (i)      Applicant's representative made submission stating that there is a real risk that the applicant will come to the attention of the authorities during these processes due to his real and imputed political opinion of being anti-government, based upon his involvement with the LTTE and pro-Tamil actions in Australia (CB 120). This claim was made in relation to the airport process as a returned failed asylum seeker. However the IAA did not consider this claim in relation to his illegal departure findings; paragraph 45 to 49 (CB 163-164)

   (ii)     IAA failed to make finding about the claim in relation to the applicant's brother's LTTE membership, despite the finding of the father's and extended family member's LTTE involvement..

   Ground Two

   2. The Second respondent incorrectly or wrongly considered the real chance test and thereby committed a jurisdictional error.

   Particulars

   a) The Second respondent accepted the applicant's LTTE involvement (personal and family) but wrongly concluded that his fear of persecution is not well founded. Country information support a favourable conclusion.

   b) The Second respondent accepted the applicant's involvement with the LTTE, which squally (sic) falls within the UNHCR guidelines as risk factor. Second respondent failed to consider the real chance of persecution in the foreseeable future and/or wrongly considered the real chance test paragraph 42 CB 162.

   c) The Second respondent applied probability test.

   Ground Three

   The second Respondent's failed to invite the applicant to clarify in writing or at an interview under section 473DC(3) of the Migration Act, was legally unreasonable, in the particular circumstances of this case.

   Particulars

   (a) IAA rejected the claim of so called "Martyr's Day" participation because he did not mention his attendance in his written statement of claims or in the supplementary submission paragraph 33 (CB 160).

2. Ground 3 was not pressed.

3. In addition to the court book filed on 24 September 2018, I have before me as evidence the affidavit of Peter Zehao Xu made on 29 April 2019, to which is annexed a transcript of the interview conducted with the delegate on 27 February 2018. 

4. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 5 July 2019.

Consideration

Ground 1 – did the Authority overlook relevant claims or evidence?

Applicant’s contentions

Failure to consider country information

1. On 13 March 2018, the applicant’s migration agent provided the delegate with post-interview submissions,[38] which included detailed country information surrounding the conditions in Sri Lanka to respond to the delegate's question at interview about the "moves towards reconciliation".

2. At [3.5]-[3.7] of the post-interview submissions,[39] the applicant’s agent outlined facts from reputable sources which sought to demonstrate former president and Sinhalese nationalist Mahinda Rajapaksa’s renewed involvement in Sri Lankan politics in early 2018 has increased state hostility towards Tamils and imputed LTTE supporters, that even Tamil asylum seekers who never worked for the LTTE were subject to torture and rape by the Sri Lankan state, and that not only former LTTE members, but also family members, are targeted by the Sri Lankan state.

3. The applicant submits that when analysing whether there was a real chance he would be persecuted for having a perceived pro-LTTE profile, the Authority failed to consider this information.  At [40] of the Authority’s decision,[40] it was indeed cognisant of the comprehensive country information surrounding the abuse of “sympathisers” of the LTTE. However, the applicant asserts that it appears to fixate on the change to the Sirisena government in 2015 and appeared to ignore the information surrounding the 2018 victory of Rajapaksa which was put forward to the delegate.

4. Although the Authority acknowledged the US State Department’s report that LTTE sympathisers do face abuse from the Sri Lankan state, the Authority appeared to disregard this information when considering the applicant’s claims and disproportionately focused on the issue of whether the applicant was of “adverse interest” to the authorities.[41]

5. The applicant asserts that, while the country information merely refers to the mistreatment of people associated or affiliated with LTTE members, the applicant was himself a former LTTE member, which should reasonably be considered to significantly exacerbate his fears of persecution according to the provided country information, even though the continued interests and mistreatment of the authorities was rejected by the Authority including his hiding from time to time.  The applicant submits that the Authority’s failure to consider this crucial country information would have contributed to significant errors when applying the “real chance” test.

Failure to consider UNHCR Eligibility Guidelines

1. Moreover, while the delegate considered the United Nations High Commissioner for Refugees’ (UNHCR) Eligibility Guidelines (UNHCR Guidelines), for the purpose of considering risk factors, the Authority failed to consider these guidelines when reviewing the delegate’s decision. These guidelines are said to play a pivotal role in determining Australia’s international protection obligations which is the foundational basis of the SHEV. As the delegate expressly referred to the guidelines, for assessing the risk factors, the Authority is said to have an obligation to also consider these eligibility guidelines.

2. Although the UNHCR Guidelines were considered by the Authority regarding the applicant's claim of displacement[42] and the likelihood of LTTE members and those with links to the LTTE participating in "lengthy forced rehabilitation programs",[43] the Authority is said to have failed to consider the UNHCR Guidelines regarding risk profiles surrounding the international protection obligations.

3. As a result, the applicant submits that the Authority neither expressly nor impliedly considered the UNHCR Guidelines as a whole, particularly regarding the pivotal subject of specific individual profiles which are likely to face persecution by the Sri Lankan state and the claim of being a returnee as an illegal departee.

Failure to consider applicant’s claims cumulatively

1. Despite accepting a significant amount of the applicant’s claims at [18], [19], [20] and [30], the Authority is said to have failed to consider the applicant’s claims cumulatively.

2. The Authority made the following findings that the applicant may suffer harm if required to return to Sri Lanka as follows:

   a)the Authority at [36] accepted that “the applicant was questioned with his father by the CID from time to time after they returned home" and at [41] stated that, "I do not accept he continued to be of adverse interest to the authorities after that time for that involvement or that he was subjected to anything more than general questioning by the CID after the family's return to their home area";

   b)the Authority at [45]-[48] accepted that the applicant may be detained and questioned at the airport for up to 24 hours, be fined for breaching the Immigrants and Emigrants Act and may face a period of time held in prison;

   c)the Authority at [43] accepted that the applicant or his family may face routine questioning that arises from low level suspicions of the Tamil community in the north and east.

3. In light of the findings in the above paragraph, a question is said to arise whether the Authority dealt with the applicant’s claims cumulatively.  The Authority did not expressly deal with the applicant’s claims cumulatively.  This is said to be a jurisdictional error.

4. In Minister for Immigration v DDK16[44] the Full Federal Court at [33] considered the following propositions:[45]

   Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration & Citizenship [2015] FCA 1151 at [47]].

   The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration & Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [21]].

1. The Full Federal Court at [32] added 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”.  However, for the reasons explained above, this is said not to be such a case.

Failure to consider claims, or integers of claims

Failure to consider the impact as a returned failed asylum seeker[46]

1. At [46]-[49] of the Authority’s decision,[47] the Authority provides a generic procedural analysis regarding a likely series of events should the applicant be returned to Sri Lanka. These series of events concern Sri Lanka’s Immigrants and Emigrants Act, and are used by the Authority to assert that the applicant is likely to only face short-term detention and fines, which, as a result, do not amount to persecution.

2. However, the applicant submits that this analysis regarding the Immigrants and Emigrants Act procedures is unreasonably narrow and therefore results in the Authority failing to consider an integer and a material issue of the applicant’s claims made in the submission. Although the initial cause of the Authority’s interest in the applicant upon his hypothetical return to Sri Lanka may indeed be the mere fact that he departed Sri Lanka illegally under the Immigrants and Emigrants Act, it is said to be highly likely that once the authorities verify the applicant’s identity against intelligence databases, as admitted at [45] of the Authority’s decision,[48] the Sri Lankan authorities will rapidly identify the applicant as an LTTE member and the family connection. Upon discovering this, there is said to be an extremely high chance that the applicant will then face the arbitrary types of abuse that the Sri Lankan state is known to inflict on imputed LTTE supporters as outlined in the provided country information that the Authority accepted at [40].[49]

3. The applicant contends that the UNHCR Guidelines note at page 8:

   Some sources have reported recent cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka.

4. Further, in APK15 v Minister for Immigration & Anor,[50] I found at [39] that an International Treaty Obligations Assessor fell into error for focusing on the outcome of prosecution in relation to Sri Lanka’s Immigrants and Emigrants Act rather than “the process that would lead to that outcome”.  In this case, although the Authority may have recognised aspects of the process at [49][51] and [55][52], such as a short period of detention and fines, the Authority is said to have overlooked that during the process of identifying the applicant and ascertaining his LTTE connections, it is “highly likely” that the applicant will be subject to significant harm, such as torture, as acknowledged in APK15.[53]

5. The applicant contends that such arbitrary abuse is likely to amount to persecution and the Authority failure to consider this integer of claim  that is "the process that would lead to that outcome" would have resulted in the Authority incorrectly assessing the applicant’s likelihood to face persecution in Sri Lanka.

Failure to make a finding and assessment about the claim in relation to the applicant’s brother’s LTTE membership

1. At [17],[54] the Authority accepts that the applicant’s brother, referred to as “C”, “disappeared during the war and has not been seen since” and that the “mother may have not wanted to discuss C with the applicant”. Further, the Authority also states in the same paragraph that “I am satisfied that he [C] joined [the] LTTE at some point around 2006/7 and that he remained with the LTTE until his disappearance in 2008”.

2. However, the applicant contends that when the Authority analysed the applicant’s claims in relation to refugee assessment[55] and complementary protection assessment,[56] it “evaded” the circumstances surrounding the applicant’s missing brother and involvement in the LTTE in the Authority’s consideration.

3. At [41],[57] the Authority states “while I accept members of the applicant’s extended family were members of the LTTE during the conflict, and that the applicant himself was forcibly recruited to the LTTE as a child-soldier and that he was questioned with his father after their return home from the IDP[58] camp, I do not accept he continued to be of adverse interest to the authorities...”.  The applicant complains that there is no mention of his relation to his brother and his involvement in the LTTE anywhere in this paragraph which purports to be an exhaustive summary of the applicant’s claims surrounding his connection with the LTTE.

4. By only identifying and accepting that “the applicant’s extended family were members of the LTTE”, the Authority is said to have failed to consider (in its refugee assessment) that a member of the applicant’s immediate family, his older brother, was a member of the LTTE and subsequently disappeared. The UNHCR Guidelines at page 27 state that persons with family links or who are dependent on or otherwise closely related to persons with connections to an LTTE cadre are at risk of persecution.

5. According to Tickner v Chapman,[59] a decision-maker must engage in an active intellectual process regarding relevant considerations. The applicant contends that the applicant’s brother’s membership to the very organisation that is persecuted in Sri Lanka is a highly relevant consideration. He submits that the Authority did not engage in an active intellectual process in its refugee assessment considering the brother’s LTTE membership and, as a result, the likely impacts on the applicant’s chances of persecution were also not considered.

Minister’s contentions

Ground 1(a) - “failure to consider country information”

1. The Minister submits that this ground, in essence, amounts to no more than an emphatic disagreement with the Authority’s decision on its merits and is otherwise a bare attempt to cavil with the Authority’s choice of country information and to draw this Court into impermissible merits review. It is well settled that the weight to be given to country information, the selection of such information, and the conclusions to be drawn from it are all matters within the purview of the Authority.[61] It must furthermore be recognised that the review undertaken by the Authority is a de novo merits review; its task is "to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met".[62]  Thus, whilst the Authority is indeed obliged to "evaluate for itself the material considered by the delegate",[63] it is not, contrary to the applicant’s submissions, obliged to select the same country information as the delegate nor obliged to accept uncritically the claims made by applicants or country information put forward by them.[64]

2. In particular, the Minister submits that:

   a)despite his contention that the Authority “failed to consider” the information contained within the applicant’s post-protection visa interview submissions,[65] it is clear from the decision record that the Authority had regard to those submissions[66] and to the review material given to it.[67] The Authority further plainly considered the claims to which those submissions were directed (being the “current political and security situation in Sri Lanka”[68]) and set out the country information on which it relied in assessing those claims.[69]  The Minister submits that, in such circumstances, the available and appropriate inference to be drawn is that the Authority did have regard to the applicant’s submissions (including the country information referred to therein) but preferred, and placed greater weight on, other sources of country information in reaching its findings (as it was entitled to do).[70]  The Minister further notes in this regard that the delegate likewise did not expressly refer to Mahinda Rajapaksa or to the country information referred to in the applicant’s submissions[71] yet no objection was raised before the Authority as to that absence; and

   b)it is notable that the applicant himself has admitted that “the UNHCR Guidelines were considered by the Authority”, as indeed, is plain from the face of the decision record.[72]  Contrary to the applicant’s submissions, the Authority was not “obliged” to prefer the UNHCR report over other sources of country information nor obliged to reach the same conclusions as the delegate.  Rather, the Minister submits again that the appropriate and available inference to be drawn is that the Authority preferred other sources of country information when considering the risk profile and that it is not open for this Court to conclude that the Authority “neither expressly nor impliedly considered the UNHCR Guidelines”.[73]

Ground 1(b) - cumulative claims

1. The Minister submits that this ground is no more than an impermissible attempt to read the Authority’s decision with an “eye keenly attuned to error”.[74]  Contrary to the applicant’s submissions, the Minister submits that when read in its context, it is plain that the Authority at [36]-[56] was ultimately considering the applicant’s claims cumulatively (in light of country information and its earlier findings at [6]-[33] in respect of those claims). In this regard, the Minister contends that the applicant, at [20] of his submissions, has mistakenly treated the Authority’s conclusory comments and assessments as if they were the Authority’s initial findings, and has furthermore misstated the Authority’s conclusions.[75]

2. The Minister notes also that, despite relying on DDK16, the applicant has omitted the Full Federal Court’s further observation at [35], namely that: [76]

   In any event, it is…clear on the face of the IAA’s detailed and thorough reasons that it expressly considered each of the various risks relied upon by the respondent in respect of both his refugee and complementary protection claims on a cumulative basis.

3. The Minister submits that this observation of the Full Federal Court is equally applicable to this case; the Authority here gave detailed and thorough reasons which demonstrates that it had considered each of the various risks and claims relied on by the applicant. The mere absence of a “formulistic incantation”[77] of the term “cumulative” does not show that the Authority failed to perform its task. 

Ground 1(c) - failure to consider claims/integers of claims

1. The Minister again submits that this ground proceeds upon a misreading of the Authority’s decision and a bare assertion of error on its part. In particular:

   a)the Authority had relevantly rejected the applicant’s claim that he was of adverse interest to the authorities[78] and furthermore did not accept that the applicant had been involved in activities in Australia that might cause him to be of adverse interest.[79]  The Authority had furthermore had regard to country information that the authorities, when checking the “intelligence databases” and the “stop” and “watch” lists, were looking for those persons with “an extant court order, arrest warrant, or order to impound their passport…[or] those considered to be of interest because of criminal or separatist activities”,[80] which the applicant had not claimed to be.[81]  In subsequently considering the likely treatment that the applicant would face as a returnee,[82] it was unnecessary for the Authority to repeat those findings. In addition, the Minister submits that the Authority properly considered the process likely to be applied to the applicant and, in so doing, assessed the likelihood of harm. In turn, the Minister submits that the applicant’s submissions at [25] and [27]-[28] are no more than pure speculation, and proceed upon reading the Authority’s findings in isolation; and

   b)the Minister further submits that the applicant’s submissions are simply an attempt to read the Authority’s decision with an eye keenly attuned to error. As has been accepted by the applicant, the Authority was plainly aware of the applicant’s claim regarding C and, in fact, accepted that claim and considered its implications.[83]  Indeed, the applicant has also in fact accepted that the Authority gave express consideration to whether the applicant’s family links to LTTE members would give rise to harm.[84]  The Minister notes in particular that the Authority placed weight on the fact that:

   i)despite C’s LTTE membership (and other family member’s membership), the applicant and his father “were never detained…when suspicions…were at their peak”;[85]

   ii)the applicant’s father has never subsequently been arrested or detained;[86]

   iii)the applicant had never experienced difficulties due to his relative’s LTTE connection;[87]

   iv)country information revealed that mere connection to persons with LTTE links would not give rise to persecution;[88] and

   v)neither the applicant’s father nor his siblings had been arrested.[89]

2. The Minister submits that, when read in context and as a whole, it is plain that the Authority did give proper regard and consideration to the applicant’s claim to fear harm by reason of his family’s LTTE membership, including by reason of his brother’s membership.

Resolution

1. I prefer the Minister’s submissions on these grounds.  The applicant asserts by Ground 1 that the Authority overlooked integers of his claims (or alternatively material information) as set out at [3.5]-[3.7].[90]  In relation to the UNHCR Guidelines, the applicant notes that the delegate considered the Guidelines,[91] although the applicant complains that the delegate overlooked his brother’s role. 

2. The applicant is also dissatisfied with the Authority’s reasoning at [44]-[49].[92]

3. In my view, all of the applicant’s complaints in relation to these grounds struggle to rise above a dispute over the merits of the Authority’s reasoning.  As the Minister points out in his submissions, the applicant may emphatically disagree with that reasoning, or the outcome of it, but that does not establish jurisdictional error.

4. I accept the Minister’s submissions that the Authority did in fact consider the applicant’s claims, and the submissions made in support of them, including the country information he relied upon.  However, the Authority gave greater weight to other sources of country information which did not support the applicant’s claims.  In particular, it is clear that the UNHCR Guidelines were considered by the Authority, as submitted by the Minister.

5. Further, I accept the Minister’s submission that the applicant’s claims were considered both individually and cumulatively on a fair reading of the Authority decision.  While an assessment of country information is not immune from an examination for jurisdictional error, in general terms, the choice of country information, and the weight to be afforded to it, are matters within the decisional freedom accorded to the Authority.

6. I see no error in the Authority’s analysis, in particular that reproduced at [36]-[40].  Further, at [14][93] the Authority expressly referred to the applicant’s submission provided to the delegate after the SHEV interview.

7. I find that none of the particulars of this ground have been established.

Ground 2 – did the Authority misapply the real chance test or fail to make a forward looking assessment?

Applicant’s contentions

1. The Authority has acknowledged throughout the decision that imputed LTTE supporters face state-sanctioned abuse and also accepted the applicant has a personal and family link with the LTTE. By confining itself to the continued interest for a period of time, the applicant submits that the Authority erred in applying the real chance test.

2. At [41],[94] the Authority accepted that the “applicant’s extended family were members of the LTTE during the conflict” and the applicant “was forcibly recruited to the LTTE as a child-soldier”. Further, at [42], the Authority also admitted the applicant’s personal links to the LTTE. By accepting these facts, the applicant submits that the Authority had impliedly accepted that the applicant could indeed be considered a “sympathiser of the LTTE”, as outlined in the Authority’s decision at [40], and that a real chance indeed exists that the applicant could therefore face “undue abuse” from the Sri Lankan state.

3. The Authority at [41][95] asserted that the applicant was not “of adverse interest to the authorities” because he “continued to live in the same village from late 2010-late 2012” and was “not taken into custody or sent for rehabilitation”. However, although the applicant’s luck in being overlooked by the authorities may suggest that he does not face persecution, these factual coincidences do not remove the likelihood that people who have extensive LTTE connections are still capable of being mistreated by the Sri Lankan state.

4. Consequently, the applicant submits that his ability to live trouble-free for a short time[96] following his stay at the internal displaced persons camp does not nullify the real chance that the applicant may be considered an imputed LTTE supporter and therefore subject to persecution. The Authority’s decision to apply the real chance test by focusing disproportionately on the applicant’s individual and personal vulnerability to state-sanctioned abuse rather than holistically considering the applicant’s previous affiliations is said to have resulted in the Authority completely overlooking that a real chance of persecution still exists.

5. The applicant submits, therefore, that this “disproportionate emphasis” on the applicant’s individual relationship with the Sri Lankan authorities in a particular point in time rather than his historical activities resulted in an “erroneous step” when applying the real chance test and, therefore, a jurisdictional error exists in the Authority’s decision.

Erroneous conclusion of applicant’s real chance of persecution arising from failure to consider UNHCR Guidelines

1. The applicant complains that, while the Authority acknowledged the presence of UNHCR Guidelines which state that former LTTE members and those with links to the LTTE may be subject to “lengthy forced rehabilitation programs” at [24] of its decision,[97] this essential information appeared to be “completely disregarded” in the Authority’s application of the real chance test.

2. The applicant submits that irrespective of whether he was personally of adverse interest to the authorities in the period directly before his travel to Australia, the UNHCR Guidelines alone should be “sufficient evidence” that a real chance of persecution exists for him, who has been established to be a former LTTE member and a person with significant familial connections to the LTTE.

Failure to consider real chance of persecution in the reasonably foreseeable future

1. In Minister for Immigration v Wu Shan Liang,[98] Brennan CJ, Toohey, McHugh and Gummow JJ at 279 approved the necessity of determining an applicant’s real chance of persecution according to the “reasonably foreseeable future test”.

2. At [42] of the Authority’s decision,[99] it stated “... I do not consider that in contemporary Sri Lanka the applicant would face any adverse attention from the authorities...”. By referring to “contemporary Sri Lanka”, the Authority is said to have ignored its obligation to consider what might occur in the reasonably foreseeable future in Sri Lanka.

3. The Authority repeatedly refers to the presence of a less militant Sirisena government in Sri Lanka since 2015. However, the applicant contends that by accepting this fact, the Authority should also be taken to have understood that governments frequently change in Sri Lanka and that if one considers straightforward realities of politics, there is little to suggest that the Sirisena government would remain indefinitely in Sri Lanka.

1. Moreover, in the applicant’s post-interview submissions dated 13 March 2018, the applicant’s migration agent stated at [3.5][100] that the more militant anti-Tamil and anti-LTTE former president Mahinda Rajapaksa is growing in popularity in the Sri Lankan political climate. The growing popularity of Rajapaksa, therefore, is said to demonstrate that it is highly likely that in the reasonably foreseeable future, Mahinda Rajapaksa, along with his “fervently anti-Tamil and anti-LTTE political associates”, may overturn the present government’s attempt at a more humanitarian approach in Sri Lanka. This, therefore, is said to significantly increase the applicant’s chances of persecution.

2. The applicant alludes to the fact that he has already been subject to arbitrary and threatening forms of persecution. This was articulated very clearly by the applicant to the delegate during the protection visa interview,[101] in which the applicant stated he was randomly interrogated by the CID “more than ten times” which explicitly threatened him. This is said to be a clear example of his civil liberties being adversely affected and impinged upon by the Sri Lankan state, thereby amounting to persecution. As a result, the applicant submits that this previous example of persecution before the applicant even left Sri Lanka should further demonstrate that the applicant is highly likely to face additional persecution in Sri Lanka in the reasonably foreseeable future.

3. In MZYXR v Minister for Immigration[102] at [20], the Federal Court held that although the human rights and security situation for the Hazara minority in Afghanistan was improving, the independent merits reviewer in that case wrongfully relied on this fact to conclude that the applicant would have no reasonable basis for fearing harm in the reasonably foreseeable future. Further, the Court also noted that a DFAT report relied upon is “generally regarded as the high point of optimism” about the affairs of the applicant’s persecuted minority group. The reviewer’s reliance in MZYXR on recent governmental reforms ultimately led the Court to find that the reviewer could not make out that the applicant would not face persecution in the reasonably foreseeable future.

4. In this case, the Authority also relied on recent governmental reforms in Sri Lanka to support the fact that the applicant would no longer face persecution.  At [37] of the Authority’s decision, it used the Human Rights Council of Sri Lanka’s 2016 report to find that “significant momentum has been achieved in the process of constitutional reform”.  The Authority is said to have then used a combination of these factors to substantiate the claim at [42] that the applicant would not face any adverse attention from authorities or a real chance of harm in “contemporary” Sri Lanka. Further, during the applicant’s protection visa interview, the delegate also specifically asked if the applicant had any comments relating to the “contemporary situation in Sri Lanka”.[103]

5. Moreover, in Minister for Immigration v SZQKB[104] at [14], the Full Federal Court found that independent merits reviewer also considered changing political dynamics in Afghanistan in the form of increased representation of the persecuted Hazara minority in the country’s Lower House of parliament to conclude that the applicant no longer had a well-founded fear of persecution. The Federal Court also found in SZQKB at [42] that the reviewer’s findings did not support that the applicant no longer had a fear of persecution in the reasonably foreseeable future and it was erroneous to “identify a focus on the present situation in Afghanistan, not the foreseeable future”.

6. In this case, the Authority also relied on very recent changes in the political dynamics of Sri Lanka in the form of President Sirisena’s election to substantiate the claim that the applicant no longer faced a well-founded fear of persecution, which should also mean that the Authority similarly failed to substantiate that the applicant would no longer face persecution in the reasonably foreseeable future. Further, the Authority’s admission that “contemporary Sri Lanka” was considered at [42] of its decision is said to be synonymous with merely identifying the “present situation” in the applicant’s country of origin, which was found to be erroneous in SZQKB.

7. The applicant submits that the facts of this case appear to be analogous to the facts in both MZYXR and SZQKB, in which recent governmental reforms and changes in political dynamics were not sufficient to posit that an applicant no longer faced a well-founded fear of persecution in the reasonably foreseeable future. As a result, the applicant submits that, when one considers all the circumstances in this case, the Authority also failed to consider the applicant’s fear of persecution in the reasonably foreseeable future and misapplied the test.

Wrongful application of the probability test rather than the real chance test

1. As observed in Chan v Minister for Immigration,[105] the meaning of “well-founded fear of persecution” as noted in s.5H of the Migration Act has been held to equate to a “real chance” of persecution. According to Mason CJ, a fear is well-founded “notwithstanding that there is less than a 50 per cent chance of persecution occurring”.[106]  Dawson J also indicates that “a real chance is one that is not remote, regardless of whether it is less or more than 50 per cent”[107] and McHugh J even states that a real chance can be as little as 10 per cent.[108]

2. However, the applicant submits that the Authority did not apply the real chance test according to these legal guidelines and, instead, impliedly used the balance of probability test.

3. The applicant contends that acceptance of country information that outlines that imputed LTTE supporters face state-sanctioned abuse, along with the acknowledgement of the UNHCR Guidelines which state former LTTE members, such as the applicant, should be more than enough to satisfy the real chance test. The fact that the applicant was not “of adverse interest” for a period of time (as decided by the Authority) to the authorities may not decrease the probability of the applicant being persecuted in future, even though it may reduce the likelihood to below 50 per cent, the real chance as identified in the country information and by the UNHCR is sufficient to satisfy the “real chance” test.  The Authority’s conclusion at [42][109] that there is no real chance that applicant would be harmed despite the acceptance of the above information is said to demonstrate an application of the balance of probabilities test rather than the lower threshold of the real chance test.

4. Consequently, the Authority is said to have exceeded its jurisdiction in using the balance of probabilities test rather than the correct test and therefore fell into jurisdictional error.

Minister’s contentions

Ground 2(a) - real chance of persecution

1. The Minister submits that the applicant’s submissions on this ground again amount to mere supposition and misstatements of the Authority’s findings. In particular, the Minister submits that there is no basis to find that the Authority “implicitly accepted that the applicant could indeed be considered ‘sympathisers of the LTTE’”. The Authority found that the applicant had confessed his (limited) LTTE involvement to the authorities[110] and that, despite so confessing, the applicant was “not perceived to be a threat”.[111]  Further, the Authority’s findings as to the absence of adverse interest in the applicant were based not simply on the lack of interest in the applicant from 2010-2012[112] but also upon the absence of harm to the applicant and his family whilst they were detained in an internally displaced persons camp[113] and on the absence of harm to his family subsequent to 2012.[114] The Minister submits that the applicant’s assertions[115] otherwise simply seek to impermissibly traverse the Authority’s factual findings and to speculate on the merits.

2. The Minister furthermore notes that the Authority plainly had regard to the correct test under s.36(2)(a)[116] and applied it,[117] including correctly considering the risk in the foreseeable future.[118]  In such circumstances, the Minister submits that there is no basis for the applicant’s contention that the Authority took “an erroneous step when applying the real chance test”.[119]

Ground 2(b)

1. The Minister notes that the applicant does not dispute that the Authority considered the UNHCR Guidelines (as also noted above). The Minister submits that the contentions in the applicant’s submissions otherwise do no more than object to the outcome of the Authority’s consideration of the claims and material before it and to the Authority’s selection of country information (being a matter within the Authority’s purview). The applicant has otherwise ignored the Authority’s “detailed and thorough” reasons for concluding that the real chance test was not satisfied.

Ground 2 (generally)

1. The Minister submits that the applicant’s contentions in his submissions are plainly no more than an attempt to engage this Court in impermissible merits review.  In particular, the Minister submits:

   a)as noted above, the Authority plainly was aware of the correct test to be applied and, furthermore, did correctly assess the risk of harm in the reasonably foreseeable future. It is well established that, in doing so, “a decision-maker may properly have regard to matters in the past, such matters being probative of what may happen in the future”[120] and it is not the use (or absence) of the phrase “reasonably foreseeable future” that determines if there was error.[121] The mere fact that the Authority used the language of “contemporary Sri Lanka” does not indicate that the Authority improperly confined its analysis to immediate consequences;[122]

   b)contrary to the applicant’s submissions, the Authority considered the applicant’s claims regarding questioning by the CID and found that this did not amount to persecution, but rather was reflective of the general treatment of Tamil refugees “in the immediate aftermath of the conflict”.[123] The Authority further rejected other aspects of this claim.[124] The Minister submits that the applicant’s submissions seek to do no more than to impermissibly traverse the merits of the Authority’s findings; and

   c)the applicant’s submissions impermissibly seek to engage this Court in merits review, through an entirely inapt comparison with cases concerning different applicants, returning to a different country, with different reviewers, who were considering different country information.[125]  As has already been noted, the weight, selection, and choice of country information is a matter for the Authority and, for the reasons already given, the Minister submits that it did not err in its consideration of such country information or in the conclusions reached in light of that information and its other findings on the applicant’s claims.

2. The Minister further submits that it is telling that the applicant’s submissions on this ground depend more on a misplaced attempt to draw an analogy with decisions in distinguishable cases than upon the actual reasoning and terms of the Authority decision which this Court has to review. 

Ground 2(c) - probability test

1. The Minister submits that this ground amounts to no more than a bare assertion of error by the applicant. Notably the applicant appears to concede that the Authority did not expressly use a “balance of probability” test and instead asks this Court to infer that it did so impliedly.[126] However, no substantive basis is given to support that inference, other than pure speculation that the Authority did so.[127]  For the reasons already given, the Minister submits that this ground is baseless and simply invites this Court to undertake merits review and to read the Authority’s reasons out of context.

Resolution

1. Half buried in the hyperbole of the applicant’s submissions concerning this ground is a real issue: that is, whether the Authority limited its consideration to present circumstances in Sri Lanka and thus failed to make the necessary forward looking assessment of the risk of serious or significant harm facing the applicant.  At [42] the Authority stated:[128]

   Based upon the country information contained in the referred materials before me, I do not consider that in contemporary Sri Lanka the applicant would face any adverse attention from the authorities or there is a real chance the applicant will be harmed on his return to Sri Lanka by reason of his ethnicity, origin in the Northern Province, his personal links to the LTTE.

2. It is apparent from that paragraph that the Authority expressed itself in the present.  As against that, it is clear from [34] and [35] that the Authority understood the task that it had to perform. 

3. I have already found that the Authority considered the applicant’s claims, both singularly and cumulatively.  I accept from the Authority decision, including the country information references at CB 163, that the Authority was bringing to bear on its consideration the most up to date country information.

4. The Authority is not required to speculate about the unknown future.  Plainly, the Authority took the view that circumstances in Sri Lanka were improving, especially after the election of the Sirisena government.  The applicant maintains that that improvement is far from guaranteed into the future and that circumstances may revert to the former, less favourable state.  The Authority is entitled to take the view, where the future is unknown, that the best available guide is the present.  Provided that the Authority engages with the available material, including that proferred by an applicant, it is entitled to make an assessment of present circumstances and bring that assessment to bear in its application of the real chance test.

5. On a fair reading of the Authority decision, read as a whole, I am satisfied that that is what the Authority did.

6. I otherwise agree with the Minister’s submissions in relation to Ground 2.  I find that this ground has not been established.

Conclusion

1. The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 5 September 2019

[1] Court Book (CB) 53, 128

[2] CB 6-20

[3] CB 125

[4] CB 71

[5] CB 92

[6] CB 110-123

[7] CB 125-143

[8] CB 146-7

[9] summarised by the Authority at [5] of its decision

[10] at [4]

[11] at [6]-[8]

[12] at [9]

[13] at [16]

[14] at [17]

[15] at [18]-[19]

[16] at [20]

[17] at [32]

[18] at [9]

[19] at [15]

[20] at [20]

[21] at [32]

[22] at [23], [27]-[28]

[23] at [31]

[24] at [10]

[25] at [22]

[26] at [25]

[27] at [23]

[28] at [26]

[29] at [31], [43]

[30] at [29]-[30]

[31] at [33]

[32] at [37]-[40]

[33] at [42]

[34] at [43]-[44]

[35] at [45]-[49]

[36] [50]

[37] [53]-[56]

[38] CB 110-123

[39] CB 113

[40] CB 162

[41] CB 162 at [41]

[42] CB 155 at [16]

[43] CB 158 at [24]

[44] [2017] FCAFC 188

[45] But see also [34]

[46] [3.33] of the submission: CB 120

[47] CB 163-164

[48] CB 163, 164

[49] CB 162

[50] [2016] FCCA 2190

[51] CB 164

[52] CB 165

[53] Also, SZQPA v Minister for Immigration & Anor [2012] FMCA 123

[54] CB 155

[55] CB 160-4

[56] CB 165-6

[57] CB 162

[58] Internally Displaced Persons

[59] (1995) 57 FCR 451

[60] The Minister notes that, at the show cause hearing on 18 April 2019, the applicant’s representative accepted that Ground 1 is dependent on the applicant first establishing Ground 2, since if the Authority correctly found that the applicant did not face a real chance of harm and was of no interest to the authorities then there could be no error in respect of the Authority’s consideration of the circumstances of his return. Nevertheless, the Minister addresses the applicant’s grounds and submissions in the order they appear in the applicant’s submissions.

[61] NAHI v Minister For Immigration [2004] FCAFC 10 at [11]; QAAT v Minister for Immigration (2005) 149 FCR 299, 311; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197]; SZMUF v Minister for Immigration [2009] FCA 182 at [14]; SZTEX v Minister for Immigration [2014] FCA 1269 at [19]

[62] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16; 92 ALJR 481 at [17]; DVB16 v Minister for Immigration [2018] FCA 1682 at [26]; Minister for Immigration v EEI17 [2018] FCAFC 166 at [48]

[63] Plaintiff M174/2016 at [22]; DGZ16 v Minister for Immigration [2018] FCAFC 12 at [68]-[78]

[64] Minister for Immigration v Guo (1997) 191 CLR 559, 596; Randhawa v Minister for Immigration (1994) 52 FCR 437, 451

[65] In this regard, the Minister presumes that the reference at [11] of the applicant’s submissions to “moves towards reconciliation” is directed to page 24 of the protection visa interview transcript: affidavit of Mr Xu affirmed 29 April 2019. It is noted that there is no reference to “reconciliation” in the delegate’s decision: CB 128-139

[66] CB 154 [14]

[67] CB 152 [3], 162 [42]

[68] CB 113 [3.5]

[69] [37]-[40], [42], [44]-[47]

[70] AEW18 v Minister for Home Affairs [2019] FCA 208 at [46]; DSF17 v Minister for Home Affairs [2019] FCA 243 at [34]; BPC16 v Minister for Immigration [2018] FCA 920 at [59]-[63]

[71] cf CB 133, 135, 137

[72] CB 155 [16] footnote 3, CB 158 [24]-[25], footnotes 7-8

[73] cf applicant’s submissions at [18]

[74] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630, 641

[75] at [41]-[48]

[76] DDK16 at [35]

[77] SZTZY v Minister For Immigration [2018] FCA 911 at [10]

[78] at [26]-[28], [31]-[32]

[79] at [33]

[80] at [38]

[81] at [41]-[43]

[82] at [45]-[49]

[83] at [17], [22]-[23], [36], [41]

[84] applicant’s submissions at [31]

[85] at [20], [26]

[86] at [31]

[87] at [32]

[88] at [37]

[89] at [43]

[90] CB 113

[91] CB 135

[92] CB 163-164

[93] CB 154

[94] CB 162

[95] CB 162

[96] denied by the applicant

[97] CB 158

[98] (1996) 185 CLR 259

[99] CB 162

[100] CB 113

[101] page 22 of transcript

[102] [2013] FCA 252

[103] page 24 of transcript

[104] [2012] FCA 1189

[105] [1989] HCA 62; (1989) 169 CLR 379

[106] at 389

[107] at 397-8

[108] at 429

[109] CB 162

[110] at [20], [24]

[111] at [26]

[112] at [21]-[28], [36], [41]

[113] at [20], [36]

[114] at [31]-[33], [43]

[115] applicant’s submissions at [36]-[38]

[116] at [34]-[35]

[117] at [36]-[50], [53]

[118] at [43]-[49], [56]

[119] applicant’s submissions at [38]

[120] CDW18 v Minister for Home Affairs [2019] FCA 270 at [15]

[121] CDW18 at [20]

[122] CDW18 at [28]-[29]

[123] at [20], [23], [31]

[124] [24]-[25], [27]-[28], [36], [41], [43]

[125] see, eg discussion of MZYXR in AKG16 v Minister for Immigration [2016] FCA 1576 at [20]-[21], [31]-[33]

[126] applicant’s submissions at [53]

[127] applicant’s submissions at [54]

[128] CB 162