ADD15 v Minister for Immigration and Border Protection

Summary of background facts 3 The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. He arrived on Christmas Island on 2 July 2012 as an irregular maritime arrival. Shortly thereafter he applied for a protection visa on the basis of his claims of political persecution. An adverse decision on this application by the Minister's delegate was reviewed by the Tribunal which, on 2 February 2015, affirmed the delegate's decision. 4 Drawing largely on the primary judge's summary, the accuracy of which was not challenged, the appellant's claim was based in large measure on the following matters. He claimed that on 25 May 2012 he was detained by Criminal Investigation Department (CID) officials, questioned about people smugglers and kept in a small dark room at a police station for three days during which time he was insulted and threatened. He was eventually released but was asked to report on 8 June 2012 to ensure that he had not left his village. He further claimed that, on 8 June 2012, while heading to a grocery store, two Sinhalese men, whom he suspected were CID officials, tried to kidnap him but he managed to escape. He claimed that, since leaving Sri Lanka, his aunt had received three visits from authorities inquiring about his whereabouts. The appellant feared that if he returned to Sri Lanka as a failed asylum seeker, he would be arbitrarily detained, tortured, killed or otherwise seriously harmed by the CID. He also feared that he might be kidnapped. 5 The Tribunal did not accept the appellant's claims regarding the events which he claimed occurred on either 25 May 2012 or 8 June 2012. The Tribunal's reasons for decision are fully summarised in the primary judge's reasons for judgment at [6]-[13], and need not be repeated here.

The primary judge's reasons for judgment summarised 6 In the proceeding below, the appellant raised four grounds of review, only one of which (ground 3) reflects the sole ground of appeal. It is appropriate, therefore, to focus on this ground alone. 7 The appellant contended below that the Tribunal had considered the wrong test when applying the complementary protection provisions. This was particularised by reference to the Tribunal having accepted certain information in making its decision under s 36(2)(a) of the Act, but failing to take into account that same information when determining the appellant's claim for protection under s 36(2)(aa). This was further particularised as relating to the Tribunal's acceptance in [44] of its reasons for decision that some Tamils returning to Sri Lanka as failed asylum seekers had been tortured by authorities, but the Tribunal found that this torture was not due to the appellant being a member of a particular social group. The appellant claimed that the Tribunal erred when it then turned to consider his s 36(2)(aa) claim because it was not appropriate to ask whether the reason for the torture was due to him being a member of a particular group. He contended that, if the Tribunal accepted that members of his social group had been tortured, the Tribunal erred by not ruling that there was a real risk of him being tortured if he returned to Sri Lanka. 8 The primary judge dismissed ground 3 of the judicial review application for reasons which are set out in [29] of his Honour's reasons for judgment: 29 The applicant's contention mischaracterises the Tribunal's findings, and in particular [44] of its reasons. The Tribunal made no finding that returnees had been tortured. It merely noted that the applicant had referred to reports of Tamils being tortured and added that the reports did not claim that the returnees were tortured because they were failed asylum seekers. It is clear from the Tribunal's decision that it was not satisfied that someone in the applicant's position faced a real risk of torture for a Convention reason or otherwise. Ground 3 does not establish any jurisdictional error on the part of the Tribunal.

The appeal 9 As noted above, the sole ground of appeal is that the primary judge erred in not finding that the Tribunal had applied the wrong test in applying provisions in the Act concerning complementary protection (which, as noted above, reflects ground 3 of the judicial review application below). The appellant did not file an outline of written submissions. His oral submissions may be summarised as follows. He complained that he feared harm from the CID if he were returned to Sri Lanka. When the Court then invited the appellant to address his sole ground of appeal, he said that he had nothing to add. 10 It is desirable to set out [44] of the Tribunal's reasons for decision, which underpins the ground of appeal because the appellant contends that the primary judge erred in not finding that the Tribunal applied the wrong test in considering his complementary protection claim (footnotes omitted): 44 As referred to above, in their submission dated 30 July 2013 [the appellant's] representatives referred to reports stating that some Tamils who had returned to Sri Lanka had been tortured by the authorities but these reports do not claim that the people in question were tortured because they were failed asylum-seekers or indeed that they were perceived as being associated with the LTTE because they were failed asylum-seekers. In their submission dated 20 October 2014 they submitted that DFAT's procedures for gathering evidence were incomplete and perfunctory and that failed asylum-seekers might be subject to unlawful or unofficial punishments by the Sri Lankan state as a result of the political opinions with which they would be imputed as a result of having sought asylum abroad. However they themselves referred in their submission dated 30 July 2013 to the decision of the UK Upper Tribunal in GJ, cited above, noting that it considered the available evidence concerning the treatment of Tamils returning to Sri Lanka. As I put to [the appellant], the UK Upper Tribunal said that the Sri Lankan authorities' approach was based on sophisticated intelligence both with regard to activities within Sri Lanka and activities abroad. I do not accept on the evidence before me that there is a real chance that [the appellant] will be imputed with a political opinion in support of the LTTE or Tamil nationalism or opposed to the Sri Lankan Government because he will be returning to Sri Lanka as a failed asylum-seeker or specifically as a failed asylum-seeker returning from a Western country or as a Tamil failed asylum-seeker. There is nothing in the evidence before me to suggest that [the appellant] has been engaged in any political activities whether in Sri Lanka or abroad which would have attracted the attention of the Sri Lankan Government. 11 In my respectful opinion, the primary judge correctly summarised this paragraph of the Tribunal's reasons. As his Honour stated in [29] of his reasons for judgment, it is clear that the Tribunal was not satisfied that someone in the appellant's position faced a real risk of torture for a Convention reason or otherwise. The Tribunal, in [44] of its reasons for decision, was responding to submissions dated 30 July 2013 and 20 October 2014 which were made on the appellant's behalf by his migration agent. The submissions claimed that failed asylum seekers might be subject to unlawful or unofficial punishment by the authorities "as a result of the political opinions with which they would be imputed as a result of having sought asylum abroad". The Tribunal found that, on the evidence before it, it could not accept that the appellant would be imputed with any political opinion adverse to the Sri Lankan Government merely because he would be returning to Sri Lanka as a failed asylum seeker. That is because there was no evidence to indicate that the appellant had engaged in any political activities whether in Sri Lanka or abroad which would attract the attention of the Sri Lankan authorities. 12 Paragraph [44] of the Tribunal's reasons for decision appears in a section relating to the appellant's claims for protection under s 36(2)(a). But in the section of the Tribunal's reasons for decision concerning the appellant's claims regarding s 36(2)(aa), the Tribunal made the following findings and observations in [54] (footnotes omitted and emphasis added): 54 As I indicated to [the appellant], I accept that he will be returning to Sri Lanka as a failed asylum-seeker. As I put to him, the Australian Department of Foreign Affairs and Trade has advised that allegations of mistreatment of returnees have not been substantiated and it has said that it is not aware of allegations of mistreatment of returnees while on remand. Having regard to the Department's advice and my findings of fact above I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he will be returning to Sri Lanka as a Tamil from Udappu who left Sri Lanka illegally and who has applied for asylum in Australia. 13 It is notable that the Tribunal made explicit reference in this paragraph to its "findings of fact above", which must include the findings set out in [44] of its reasons for decision (which are set out in full in [10] above). The Tribunal did not accept that there was a real risk that the appellant would suffer significant harm (in the form of torture or otherwise) for any reason, whether Convention-based or otherwise. 14 The primary judge did not err in rejecting the appellant's claim that the Tribunal had applied the wrong test under s 36(2)(aa) of the Act.

Conclusion 15 For these reasons, the appeal will be dismissed. The appellant must pay the Minister's costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.