The appeal
19 The appellant filed a notice of appeal from the Federal Circuit Court on 9 July 2018. As mentioned, the only remaining ground is ground four:
Although there was country information which the IAA accepted of "Tamils being abducted and of ongoing human rights violations in Sri Lanka", the IAA excluded this information from application to the applicant because "the indications are that those involved had real or perceived links with the LTTE". The word "indications" is tentative. The IAA failed to take into account the possibility that those who suffered human rights violations did not have real or perceived links with the LTTE and failed to foreclose reasonable speculation about the chance that these human rights violations were carried out on Tamils who did not have real or perceived links to the LTTE. On this basis, the Federal Circuit Court Judge Smith should have held the IAA did not properly apply the real chance test explained in Minister v Rajalingam (1999) 93 FCR 220.
20 This ground mirrors the third ground identified by the Federal Circuit Court at J[35]:
The third ground focuses on [23] of the Tribunal's reasons and in particular, the statement by the Authority that "the indications are that those involved [in human rights violations in Sri Lanka] had real or perceived links with the LTTE". The applicant argues that the word "indications" suggests that the Authority only made a tentative finding concerning this issue and, in light of the nature of the enquiry required by the "well-founded fear of persecution" the Authority ought to have asked "what if I am wrong?": see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60]-[67] (Sackville J); [1999] FCA 719.
21 The Federal Circuit Court considered this ground relied on too narrow a reading of the Authority's reasons: J[36]. The word "indications", that court concluded, was not suggestive of any real doubt on the part of the Authority sufficient to engage the principle articulated in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. Accordingly, the Federal Circuit Court concluded that the Authority did not need to assess the possibility of harm on the hypothesis that its conclusion might be wrong.
22 The Federal Circuit Court said at J[36] and [37]:
36. This ground, like the first two grounds, relies on too narrow a reading of the Authority's reasons. The word "indications" in [23] is not suggestive of any real doubt held by the Authority in respect of its conclusion concerning the identity of the Tamils who had been tortured and the subject to other human rights violations in Sri Lanka. Rather, it was a conclusion drawn from the material referred to by the Authority: see US Department of State, "Human Rights Report 2014 Sri Lanka", 25 June 2015. It is important, immediately following the sentence impugned by the applicant, the Authority stated:
23. ... The applicant does not have a real or imputed LTTE profile and I note his involvement in the Pongutamil event and his link to the friend recruiting for the LTTE did not attract any adverse attention in the past. I find that there is not a real chance the applicant would face harm from the authorities in Sri Lanka for being a Tamil from a former LTTE controlled area, having participated in a Pongutamil event, or helping his identify potential LTTE recruits.
37. On a proper understanding of the Authority's reasons, the Authority did not need to assess the possibility of harm on the hypothesis that its conclusion about the identity of the people subject to human rights in Sri Lanka was wrong.
23 A Full Court of this Court (Keane CJ, Perram and Yates JJ) referred to Rajalingam with apparent approval in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; 117 ALD 441 at [94] and [95]:
94. The requirement that a fear of persecution be "well-founded" adds an objective element to the requirement that an applicant actually have a fear of persecution. In order to demonstrate a well-founded fear of persecution it is sufficient that there is a "real chance" that the applicant might be persecuted for a Convention reason: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. This requires a decision-maker to engage in a degree of speculation about future events. The fact of past persecution is relevant to the determination of possible future persecution.
95. In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision-making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution. His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:
(a) There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.
(b) In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.
(c) Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.
(d) There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.
(e) Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to "impute" to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To do so would be to engage in merits review.
(f) In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal's own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.
24 The principles were recently considered by Banks-Smith J in BDO15 v Minister for Immigration and Border Protection [2018] FCA 619 and CCW17 v Minister for Immigration and Border Protection [2018] FCA 1543.
25 The principles are said to apply both to past events occurring to others (an example being afforded by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and past events occurring to the applicant: Rajalingam at [55]. The past events upon which the appellant relies are the past events said to have occurred to others referred to at A[23].
26 The first step in the inquiry is to determine whether the Authority in fact had a real doubt about its conclusion with respect to the relevant past events. If it did not, no occasion arises to consider whether the Authority should have taken into account the possibility it was wrong when assessing whether there was a real chance the appellant might, in the future, be persecuted for a convention reason. That is so whether the matter is approached through the principles identified in Rajalingam and MZXSA or the more recent development of the principles of irrationality and unreasonableness in administrative decision-making - see, for example: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713.
27 The Authority's reasons should be read in a practical common-sense manner and not be construed minutely with an eye keenly attuned to the perception of error: Wu Shan Liang at 271-2; Rajalingam at [67]; MZXSA at [96]. In my view, it is tolerably clear that the Authority did not have any "real doubt" (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576; Rajalingam at [56]) that Tamils who had been subjected to abduction and human rights violations were those with a profile of actual or imputed links to the LTTE (a profile which the Authority concluded the appellant did not have). The Authority at A[23] was expressing its conclusion as to the effect of the material to which it was referring. I do not read into its use of the word "indications" that the Authority had any real doubt about its conclusion of the effect of the material to which it referred.
28 This conclusion is perhaps made more clear when the sentence in A[23] is considered in the context of the reasons as a whole. For example, the Authority noted at A[25] that there were "reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links" but that DFAT was "not aware of specific monitoring of returned asylum seekers on the basis of their profile as failed asylum seekers". Reading the Authority's reasons fairly and practically as a whole, the Authority was stating that it accepted there were reports of Tamils and returned asylum seekers being mistreated, but only where they had an actual or imputed profile of LTTE links. In my view, the Authority did not have a doubt to the effect that there might also have been mistreatment even where there was no actual or imputed profile of LTTE links or that it otherwise had any other real doubt about the conclusion it reached at A[23]. It certainly did not have a doubt of sufficient significance to engage the application of the principles identified in Rajalingam or to raise a question about the rationality or reasonableness of the decision reached.