AKQ17 v Minister for Immigration and Border Protection

Review by IAA 7 The IAA accepted that the appellant was injured and still has shrapnel in his body from a grenade which the Sri Lankan army threw into a shop in which he worked: R[10]. 8 The IAA appears to have accepted that the appellant was forced to reside in a refugee camp for three months in 2007 due to fighting between the LTTE and Sri Lankan authorities, that the grocery store was damaged during this fighting, that he filed a case against the Sri Lankan Army in 2007 and that 20 days later, he and his wife were assaulted and the store was destroyed by members of the army. The appellant and his wife ceased to run the business after this incident: R[12]. 9 The IAA accepted that the appellant was questioned by Sri Lankan authorities on a number of occasions during round ups in his local area, that he was questioned while he travelled through Sri Lanka, that he was held for short periods and (based on his own evidence) that he was released on each occasion because he was not of any interest to the authorities. Given inconsistencies in his evidence, the IAA did not accept that he had been arrested for up to one month at a time: R[15]. 10 The IAA rejected the appellant's claim that he lived in hiding from 2007 to 2012 on the bases that during that time he had continued to reside in his local area and worked in construction, he had been able to apply for and be granted two travel documents, and he had travelled to Dubai in 2002, returned to Sri Lanka and gone back to Dubai in 2003, returned to Sri Lanka in 2005 and travelled to India and back in 2012 with no problems: R[15] and [18]. 11 The IAA was "not satisfied the Sri Lankan authorities had any ongoing interest in [the appellant] prior to him departing Sri Lanka on the basis of lodging a complaint or being perceived to having real and imputed links to the LTTE, for being a Tamil from the East or for any other reason": R[15] 12 The IAA noted events which had occurred in Sri Lanka since the appellant's departure with the defeat of President Rajapaksa in January 2015, assessments by the Department of Foreign Affairs and Trade in relation to the fact that there are no official laws or policies that discriminate on the basis of ethnicity or language, the cessation of forced registration of Tamils and UNHCR guidelines published in 2012 which did not list Tamils as having a risk profile based on ethnicity alone: R[16]-[18]. 13 The IAA went on to find at R[18]: I accept that the [appellant] will be returning to Sri Lanka as a Tamil from the Eastern Province who operated a grocery store and sold groceries to the LTTE, however given the country information cited and the personal circumstances of the applicant, I am not satisfied the [appellant] has a profile which would attract the interest of the authorities upon return to Sri Lanka. The [appellant] claims that in 2007, he lodged a complaint to the Sri Lanka authorities about the grocery store being attacked and that he continues to be fearful of the authorities on this basis. However, I note on the [appellant's] own evidence that he has been involved in round ups since the 2007 complaint and was released as he was not of interest to the authorities. I therefore do not accept the claim that his life will now be at risk on this basis. I also find it material the [appellant] continued to reside in [name of place redacted] during his claimed period of hiding and worked in construction during this time and it follows that I do not accept the [appellant] was forced to remain in hiding between 2007 and 2012. I also note that the [appellant] travelled to India lawfully in May 2012, when he claimed to have been in hiding. [Emphasis added]. 14 At R[19], the IAA accepted that the appellant had been previously questioned, arrested and detained but released after a short period on the basis that he is not of any interest to the authorities. It noted his evidence that he had never been sent to any rehabilitation camps for LTTE suspects. It then went on to say (as written): I accept the [appellant] may be questioned upon return on the basis of departing Sri Lanka illegally, however I am not satisfied that he will face any harm upon return to Sri Lanka on the basis of being a Tamil from the Eastern Province or for being perceived to have an links to the LTTE or for lodging a complaint against the authorities in 2007. I am not satisfied that there is a real chance the [appellant] will face any harm on this basis, now or in the reasonably foreseeable future. 15 Further, based on country information and the fact that the appellant had entered and left Sri Lanka a number of times while he bore visible scars, the IAA did not accept that he faced a real chance of serious harm because his scars would attract attention and the authorities would suspect him of being involved with the LTTE: R[21]. 16 The IAA accepted that the appellant would be returning to Sri Lanka as a Tamil asylum seeker who departed Sri Lanka illegally. It accepted that he may face questioning and a short period of detention if he returns to Sri Lanka because he left the country illegally. It accepted that if he pleads guilty to leaving the country illegally he will face a fine. However, it did not accept that this would amount to serious harm: R[22]-[26]. 17 Further, while there was country information which suggested that Tamil asylum seekers who did have an actual or imputed connection with the LTTE might face mistreatment, since the IAA did not accept that the appellant had that profile, it was not satisfied that the appellant had a well-founded fear of persecution on that basis now or in the reasonably foreseeable future: R[28]. The IAA concluded that paragraph as follows: I am also not satisfied that the Sri Lankan authorities will pursue the [appellant] once he returns to his home area on this basis. I am also not satisfied that the [appellant] being a Tamil, having previously sold groceries to the LTTE, his place of origin, the Eastern Province and/or the previous complaint made to the authorities in relation to the grocery store considered individually or cumulatively will enhance the treatment received by the [appellant] from the authorities upon his return to Sri Lanka. 18 It concluded the appellant did not meet the requirements of the definition of refugee in s 5H(1) and therefore did not meet s 36(2)(a) of the Migration Act: R[29]. 19 In considering whether the appellant was owed "complementary protection", the IAA specifically had regard to (1) the fact that it accepted that the appellant had previously worked in a grocery store and sold groceries to the LTTE and that he had been held by Sri Lankan authorities during roundups but on each occasion he had been released as he was no longer of interest the authorities and had never been suspected of having any real or imputed links to the LTTE: R[32]; (2) the visible scars on his body: R[33]; (3) the fact that he is a Tamil from the Eastern Province: R[34]; and (4) the fact that he would be returning as a failed Tamil asylum seeker who left Sri Lanka illegally and therefore faces the possibility of brief detention and a fine. It found that there was no real risk that the appellant would face significant harm if he was returned to Sri Lanka on any of these bases: R[35]-[37]. 20 It then stated that, taking into account his claims individually and cumulatively, it was not satisfied that there was a real risk of significant harm to the appellant upon his return to Sri Lanka: R[38]. The IAA therefore found that the appellant did not meet the requirements of the "complementary protection" criteria in s 36(2)(aa) of the Migration Act: R[39]. 21 The IAA affirmed the delegate's decision

Grounds of review and grounds of appeal 22 On 2 February 2017, the appellant filed with the FCCA an application for judicial review of the IAA's decision. The grounds of review considered by the primary judge were those set out in an amended application attached to submissions filed on 31 May 2017 as follows: 1. One claim by the applicant which was before the Immigration Assessment Authority ("the IAA") was that, since coming to Australia in 2012, the Sri Lankan authorities had come looking for the applicant and had warned the applicant's wife that they would arrest him on his return to Sri Lanka. The IAA failed to deal with this claim. This was a jurisdictional error. 2. The IAA accepted the applicant's claim that in 2007 he filed a claim against the Sri Lankan Army in connection with damage by the Army to his grocery store. The applicant added that he fears persecution as a result. In the circumstances, a question for the IAA to consider was whether the applicant, if required to return to Sri Lanka, would pursue the case against the Army and suffer persecution as a result. This question arose squarely on the materials before the IAA. The IAA failed to deal with this integer of the applicant's claim. This was a jurisdictional error. 3. The IAA, after noting paragraph 24 of its decision that "prisons in Sri Lanka do not meet international standards due to overcrowding, poor sanitary conditions and lack of resources" continued at paragraph 44 that this did not amount to significant harm because the harm was not "intentionally inflicted" within the meaning of s 5(1) of the Migration Act. The Tribunal erred in its construction of the term "intentionally inflicted". This was a jurisdictional error. 23 The primary judge dismissed the appellant's amended application on 15 June 2017 and gave reasons ex tempore. 24 On 29 June 2017, the appellant lodged with this Court a notice of appeal containing six grounds. The first three grounds replicate the application to the FCCA and then contain a claim that the primary judge erred by failing to hold that the IAA's decision was affected by the claimed jurisdictional errors. 25 The same counsel who represented the appellant in the FCCA filed written submissions on the appeal, although he did not represent the appellant at the hearing. In his preliminary observations, counsel acknowledged that grounds of appeal 3, 5 and 6 are hopeless because they raise the same point which arose in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; FCAFC 60 and that the High Court had dismissed the appeal from the Full Court's decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. 26 At the hearing of the appeal on 27 November 2017, different counsel appeared for the appellant. Counsel abandoned ground 4 and confirmed that the appellant would not rely on any of grounds 3 to 6 of his notice of appeal. Accordingly, the grounds of appeal which fall for determination relate to the primary judge's rejection of the first two grounds for review considered by the primary judge.

Ground 1 27 Both counsel for the appellant say that the primary judge erred when he found at J[25]-[26] as follows: 25. I accept the submissions of the first respondent that on a fair reading of the Authority's reasons the applicant's claim in relation to his fear of the authorities from having contacted his wife subsequent to his departure were subsumed in the findings made by the Authority that since the 2007 complaint the applicant was released and was not of interest to the authorities and the finding that the Authority was not satisfied the applicant will face any harm upon return to Sri Lanka on the basis of being a Tamil from the Eastern Province, or for being perceived to having links to the LTTE or for lodging a complaint against the authorities in 2007. 26. The Authority made a more general finding in that regard that the Authority was not satisfied that there is a real chance the applicant will face any harm on this basis now or in the reasonably foreseeable future. That finding subsumed the applicant's claim advanced by Mr Zipser on a fair reading of the Authority's reasons. I also accept the first respondent's submission that the claim is subsumed in the further findings made by the Authority in paragraphs 28, 29, and 32 read as a whole. 28 The substratum of this challenge are claims made at [38]-[39] and [47] of the appellant's statutory declaration (which I will refer to as the "Claims"): 38. Initially, [the appellant's wife] told me that the Sri Lankan Army and CID had come looking for me. The army camp is around three kilometres from my home. My wife told me if they saw her mother or anyone coming in or out of the residence, they would approach them and ask about me. Around two years ago my wife told me that she got injured trying to get away from them. 39. I believe that the Sri Lankan Army know that I am in Australia. Around one year after I left Sri Lanka, my wife told me that the Army told her "we heard he went to Australia. When he returns to the country, we will arrest him". … 47. The Sri Lankan Army and police have informed my wife if I am returned to my country, they will arrest me. 29 The Claims were repeated in his post-interview submissions to the Department at two points. The first instance was almost a word for word repetition of the material at [38]-[39] and [47] of the statutory declaration: these appear in the Appeal Book at page 167. The second instance is at page 168 of the Appeal Book, where the post-interview submissions state: • The Sri Lankan Army and police have already informed [the appellant's] wife if he returned to his country, they will arrest him. • [The appellant] is known to them personally because of the complaint he made in 2007, because of his status as a young man who lived in [place name redacted] in the Eastern Province during the conflict, and as someone who sold groceries to the LTTE. • [The appellant] fears that they may take him into their custody and may torture him again. He feels that his body could not now bear all the torture he received previously again. • He believes he will be killed. 30 It is common ground that the IAA's reasons make no express finding in relation to the Claims. 31 When the IAA summarised the appellant's Claims at paragraph [4] of its reasons, it included the following in the penultimate dot point: Since arriving in Australia his wife advised him that the Sri Lankan army and CID have come looking for the [appellant]. The army advised his wife that they knew he is in Australia and upon return they will detain him because he made a complaint to them in 2007. 32 The IAA again referred to this issue at paragraph [13] as follows: During the SHEV [safe haven enterprise visa] interview, the [appellant] stated that in 2014 his wife and her mother re-established the grocery store. He was asked if his wife has faced any problems from the authorities since re opening the grocery store. He claimed that she is safe as the store is operated by her mother. He claimed that the authorities have been to the store since his departure from Sri Lanka and told his wife they would take care of the [appellant] upon his return to Sri Lanka. He claimed the last time the authorities visited the store was one and a half years prior to the SHEV interview however he continues to fear harm from the Sri Lankan authorities. 33 The appellant's counsel contrasts the way the IAA dealt with the Claims with the way the delegate did. In the delegate's record of decision, the Claims were discussed as follows: Sri Lankan authority's interest in the applicant since departing Sri Lanka 92. The applicant also claimed that the Sri Lankan authorities had approached his family in Sri Lanka seeking the [appellant's] whereabouts many times since his departure in September 2012 and the last time this happened was about one and a half years ago. In his written statement, the [appellant] claimed that about one year after leaving Sri Lanka, the [appellant's] wife informed him that the Sri Lankan army were aware that the applicant had departed Sri Lanka and that he will be arrested when he returns to Sri Lanka. 93. However, I do not accept that the Sri Lankan authorities have sought the [appellant] since his departure from Sri Lanka in September 2012. By the [appellant's] own admission, the [appellant] stated there are informers who identify persons of interest to the Sri Lankan authorities. The [appellant] remained with family and friends and worked on a casual basis in public view in the [name redacted] district. If the [appellant] was of interest to the Sri Lankan authorities, such informers could have reported on the [appellant]. 94. Further, if the Sri Lankan authorities were aware that the [appellant] had left Sri Lanka about one year after his departure in September 2012, it would appear pointless to visit the applicant's home seeking his whereabouts knowing he would not be there. 95. Furthermore, I have found that the [appellant] was not in hiding from 2007 to 2012; the [appellant] has not experienced any further ill-treatment from the Sri Lankan authorities since July 2007 and the [appellant's] family have moved back to [name redacted] and re-opened their shop. These factors support a finding that the [appellant] would not be of any adverse interest to the authorities to warrant visits to his family home. 96. I therefore do not accept that the Sri Lankan authorities were seeking the [appellant] after he departed Sri Lanka in September 2012. 34 Both the appellant and the Minister accept that the Full Court's decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; FCAFC 184 (WAEE v MIMIA) at [47] is relevant to consideration of whether the IAA made a jurisdictional error. It is appropriate to refer to both paragraph [46] and [47], since they together address the principles embraced by the appellant and not contradicted by the Minister: 46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 35 In WAEE v MIMIA, the appellant claimed to fear persecution in Iran on the basis of his Sabian Mandaean religion and because of (1) pursuit of his daughter by a rejected suitor who was a member of the revolutionary guard leading to his wife's abduction and danger to his family; (2) persecution of his minor children at school on the basis of their religion; and (3) his son's marriage to a Muslim woman and its repercussions for the appellant and his wife. While the third claim was referred to in the Refugee Review Tribunal's overview of the appellant's case, there was no express reference to it in the Tribunal's discussion and findings: see WAEE v MIMIA at [34]. The Full Court found this to be a jurisdictional error because the third claim was a significant element of the application to the Tribunal and the material before the Tribunal on the son's intermarriage issue and the contention advanced in respect of it went directly to the criterion concerning the grant of a protection visa under s 36 of the Migration Act. Although the Tribunal recounted the appellant's claims on this issue early in its reasons, its failure to consider the evidence and the contention led to the inescapable conclusion that it failed to address the issue: WAEE v MIMIA [48]-[52]. 36 Both counsel for the appellant contend that this case is not relevantly different from the circumstances of WAEE v MIMIA and the IAA simply failed to engage with the Claims. They say that it was necessary for the IAA to deal with the Claims in the same express fashion as the delegate did. Mr Kulkarni (who appeared for the appellant at the hearing) submitted that the structure of the IAA's reasons is chronological. At R[15], the IAA finds that the Sri Lankan authorities had no interest in the appellant before he left Sri Lanka. It then moves on to consider the position after the appellant left Sri Lanka but does not deal with the Claims that his wife was told that he would be arrested if he returned to Sri Lanka and it should have. Counsel say that this was a jurisdictional error. 37 Counsel for the Minister submitted that the IAA's reasons at R[4] draw an explicit link between the threat made to the appellant through his wife and the complaint he made against Sri Lankan authorities in 2007. Further, at R[13], the IAA refers to the threat in a context that it had been one and a half years since the authorities had last visited the shop. On a fair reading of the IAA's reasons, it can be taken to have rejected the Claims because of: (1) the finding at R[15] that the appellant was of no interest to the authorities at the time that he left Sri Lanka on any of the claimed bases. Counsel noted the proximity of R[13] to R[15]; (2) the finding at R[18] that the appellant did not have a profile which would attract interest if he returned to Sri Lanka; (3) the IAA's finding at R[18] that it did not accept that his life would be at risk because of the complaint made in 2007 because he was released on the occasions he was rounded up after 2007 on the basis that he was of no interest to the authorities; (4) at R[19], the IAA accepted that the appellant might be questioned by authorities upon his return but did not accept that there was a real chance that he would face harm now or in the foreseeable future because he was a Tamil from the Eastern Province, or for having any perceived links with LTTE or for lodging a complaint against the authorities in 2007. 38 It is common ground that the question of whether a claim is subsumed in a decision-maker's general findings is a question of fact.

Consideration of ground 1 39 I do not accept that the primary judge erred in finding that ground 1 was not made out. 40 The IAA's reasoning in relation to the Claims would have (appropriately) been more transparent had the IAA been more express in its analysis and findings concerning them, as the delegate was. Nonetheless, the IAA referred to the issue raised by the Claims twice and the IAA's reasons are otherwise comprehensive and careful. I do not accept that it overlooked the Claims. 41 The IAA's reasoning in relation to the question of whether the appellant is a refugee is generally (though not exclusively) divided between the period before he left Sri Lanka and the period after that. 42 The IAA dealt with every basis on which the appellant said he might have been of interest to Sri Lankan authorities before he left in 2012. The finding that he was not of interest to the authorities was open to the IAA for the reasons that it gave at R[15]. 43 The appellant says that the threat conveyed to his wife was made approximately a year after he left for Australia, which was on 26 September 2012. In its reasons at R[13], the IAA notes that "[the appellant] claimed the last time the authorities visited the store was one and a half years prior to the SHEV interview". That interview with the delegate occurred on 7 September 2016. That would place the last visit by the authorities as having occurred around the end of February or early March 2015. 44 The IAA considered in some detail the circumstances prevailing in Sri Lanka following the change of President in January 2015, based on country information derived from a number of sources. The IAA noted that the Sri Lankan Government's attitude to human rights improved, its interaction with international agencies improved, military governors were replaced by civilian governors in the Eastern Provinces, official laws or policies did not provide for discrimination, the cessation of forced registration of Tamils suggested that the trend of monitoring and harassment of Tamils in day to day life had eased and the UNHCR (since 2012) no longer listed Tamils from a former conflict area as being in need of international refugee protection. The IAA also noted that the appellant would be returning as a Tamil from the Eastern Provinces who sold groceries to LTTE. Based on the country information and the appellant's personal circumstances, the IAA considered that the appellant would not have a profile of interest to the authorities upon his return. The IAA addressed the issue of the 2007 complaint and found that although the appellant continues to be fearful of authorities on that basis, on his own evidence, when he had been rounded up before he left Sri Lanka, he had been released because he was not of interest to authorities. While the IAA acknowledged that he might be questioned upon his return to Sri Lanka, the IAA did not accept that the appellant would face substantial harm on any of those bases now or in the foreseeable future if he returns to Sri Lanka: R[16]-[19], [28]. 45 The post-interview submissions suggest that the appellant's Tamil ethnicity, his perceived political opinion sympathetic to the LTTE, his status as a young man in the Eastern Province during the Sri Lankan civil war and the complaint are the bases on which he was known to the authorities. No other basis was suggested for the threat which the appellant says was made to his wife. In finding that the appellant did not have a well-founded fear of persecution if he was returned to Sri Lanka for any of the bases on which the appellant was said to be known to the authorities, the IAA implicitly rejected the Claims and resolution of the Claims was subsumed in the general findings which were open to the IAA for the reasons which it gave.

Ground 2 46 The appellant concedes that he did not expressly claim to fear harm if he returned to Sri Lanka because he would pursue the case which he filed in 2007 in relation to damage to his shop. However, (at R[15]) the IAA appeared to accept that he did file a case in 2007. His counsel say that if a person files a case, the usual inference is that he will prosecute it until it concludes; there was no evidence before the IAA that the appellant had abandoned or withdrawn the case. Accordingly, this claim arose "squarely" on the materials available to the IAA and the IAA had a statutory duty to consider it. They relied on the Full Court's decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; FCAFC 263 at [58].

Consideration of ground 2 47 This ground must also fail. In my view, the primary judge properly accepted the Minister's submission that no such claim arose on the materials before the IAA: J[28]. 48 In his statutory declaration, the appellant said that following fighting between the army and LTTE on 28 February 2007, his family was forced to leave his village. At [27]-[29] he says: 27. … Because of the damage to our shop, I filed a case against the Sri Lankan Army on 6 July 2007. I thought that by making a complaint I might get help restarting the business. However, this is not what happened. 28. Approximately twenty days after my complaint, we were assaulted by the Sri Lankan Army. They had a wooden pole and I was beaten all over my body. They also attacked me with the back of their rifles. There were 7 men, two people stayed in the van and five of them assaulted us. 29. After this, my family went into hiding with friends and relatives and we stopped running our business. … 49 These claims are repeated almost word for word in the post-hearing submissions on page 165 of the Appeal Book. The final four dot points under the heading "Details of [the appellant's] claims" are those quoted from page 168 of the Appeal Book at [29] above. 50 On a fair reading of these materials, the appellant claimed to have started a case in 2007 in order to get help to restart the shop. There is no sense of this being an ongoing case and there is no express claim that he would wish to pursue it. His fear of harm is expressed in terms which suggest that it is the fact of having started it at all which puts him at risk, not any suggestion that it would be pursued more than nine years after the event.

Conclusion 51 The appeal should be dismissed with costs. Having regard to comments made at the hearing, I will allow the Minister 14 days in which to file any application for an award of lump sum costs and a supporting affidavit and time for the appellant to make submissions in relation to that material. The issue will be determined on the papers. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.