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[2018] FCA 1684
Federal Court of Australia
2018-11-06
Thawley J
Original judgment source is linked above.
THAWLEY J: 1 The appellant appeals from a decision of the Federal Circuit Court of Australia delivered on 22 June 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 19 January 2017. 2 The Authority affirmed a decision dated 31 August 2016 of a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a Safe Haven Enterprise Visa (SHEV). 3 Although the appeal originally identified four grounds of appeal, ultimately only the fourth was pursued. Shortly before the hearing of the appeal, the appellant filed written submissions addressing the fourth ground. At the hearing of the appeal grounds one to three were formally abandoned.
Background 4 The appellant is a Tamil male from Trincomalee, Eastern Province, Sri Lanka. He arrived in Australia by boat on 17 August 2012. 5 On 6 January 2016, the appellant lodged a valid SHEV application. He claimed to fear harm from the Sri Lankan authorities due to his Tamil ethnicity and his perceived profile as a supporter of the Liberation Tigers of Tamil Eelam (LTTE). 6 The Authority summarised the appellant's claims for protection at A[5]: • The applicant is a Tamil from Trincomalee, Eastern Province, Sri Lanka. As a child he witnessed the violence of the civil war and the rounding up and killing of Tamils by the army. He was personally stopped and checked in round up exercises on three to four occasions as a teenager/young adult. • In 2002/2003 he participated with other villagers in a Pongutamil [described by the appellant as a "rising of the Tamils"] organised by the LTTE. He held a poster calling for Tamil rights. • A friend of the applicant recruited Tamils for the LTTE and the applicant made suggestions to him for possible recruits. The applicant did not join the LTTE because he did not want to be involved in fighting. The LTTE attempted to recruit the applicant and to avoid this he went to Qatar in 2004 to work. • The applicant returned to Sri Lanka in 2008 and lived with his family in Trincomalee. From the family home he could hear bombing which distressed him. He was stopped and checked in an army round up in 2008 and again in 2011. He was held in group round ups on two to three further occasions. On one occasion in 2012 he was detained and questioned about links to the LTTE. • In March 2012 weapons were found in the applicant's village and the army rounded up the villagers. The applicant was away from the village at the time and was not detained or questioned. • The applicant departed Sri Lanka illegally in 2012. His wife has advised him that the Criminal Investigation Department (CID) have obtained lists of Tamils who have left Sri Lanka and travelled overseas and that the CID have questioned their relatives. • He has provided a letter dated 15 July 2013 from the Chairman, Pradeshiya Sabha, in which it is stated that the applicant was "arrested [once] on suspicion that he had helped the LTTE". • The applicant's experiences in the civil war and being rounded up have left him with a strong subjective fear of harm in Sri Lanka and he cited examples of reacting to loud noises in Australia. • He fears that the authorities suspect him of being an LTTE member and supporter and that they will harm him on return on this basis and because he is a failed asylum seeker. • There is a long history of conflict between Tamil Hindus and Sinhalese Buddhists. He fears that Tamils and Hindus have no rights in Sri Lanka that nothing has changed despite the change of government. His family face lots of issues and problems. The Prevention of Terrorism Act (PTA) remains in force and he fears he could be arrested on return to Sri Lanka. 7 The Authority accepted that the appellant witnessed civil war fighting and the rounding up and killing of Tamils as a child. It accepted that: he participated in a Pongutamil event in 2002 or 2003; he made suggestions to his friend of possible LTTE recruits; he was held and checked in army round-ups in 2008 and 2011 and on two to three further occasions; he was detained on one occasion in 2012 and questioned about links to the LTTE; and weapons were found in the appellant's village, leading to the Sri Lankan army rounding up villagers in 2012. The Authority also accepted that the appellant departed Sri Lanka illegally in 2012 and that the Criminal Investigations Department (CID) of the Sri Lanka Police had obtained details of Tamils who had departed Sri Lanka and had interviewed their relatives, including the appellant's family. 8 The Authority found the appellant did not advance a separate claim to fear harm on the basis of his religion as a Hindu, and that any such claims were subsumed by his claims regarding rights for Tamils and claims relating to the civil war: at A[14]. 9 The Authority did not accept that the appellant was "arrested on suspicion that he had helped the LTTE", as stated in the letter dated 15 July 2013 from the Chairman of the Trincomalee "Town and Gravets Pradeshiya Sabha" (a local government body), finding this claim was inconsistent with the appellant's own claims: A[15]. 10 Of particular relevance to ground 4 of the appeal is the Authority's findings at A[23] in the emphasised sentence as follows (footnotes omitted): 23. I accept there are reports of Sri Lankans, including Tamils, being abducted and of ongoing human rights violations in Sri Lanka, including the use of torture against suspects. However, the indications are that those involved had real or perceived links with the LTTE. 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. 11 The sentence immediately preceding the emphasised sentence contained a footnote reference to: "US Department of State, 'Human Rights Report 2014 Sri Lanka', 25 June 2015". 12 The Authority went on to state at A[24] and A[25] (footnotes omitted; emphasis added): 24. I have had regard to the claims that the CID have obtained the names of Tamils who have travelled overseas, however I am not satisfied that this points to a real chance of harm to the applicant on return to Sri Lanka. From the applicant's account the CID contacted the relatives of departees and asked them questions; there is no indication that they have made any threats of harm or have an adverse interest in these people. When asked at his SHEV interview to explain his claim that his family have been harassed since his departure from Sri Lanka the applicant stated that they had not been harmed personally and he went on to recount general concerns about what may happen to him on return. With regard to the specific claim about the CID questioning the relatives of people who had travelled overseas the applicant clarified that the CID had "asked questions". I accept that the CID may have asked some questions of the applicant's family, however I am not satisfied from the applicant's account that this amounts to harassment or harm. I have found that the applicant does not have an LTTE profile and is not of adverse [interest] to the authorities and I am not satisfied that these enquiries by the CID point to a real chance of harm to the applicant on return. 25. I have noted his concerns about mistreatment of Tamils returning to Sri Lanka and fears of harm returning as a failed asylum seeker. There is no indication on the evidence before me that the applicant's status as a failed Tamil asylum seeker would bring him to adverse attention on return to Sri Lanka. I accept that there are reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links, but I do not accept the applicant has such a profile or would be perceived as such. DFAT reports that it is not aware of specific monitoring of returned asylum seekers on the basis of their profile as failed asylum seekers. I am not satisfied that there is a real chance the applicant would face any harm as a returning failed Tamil asylum seeker. 13 The first emphasised sentence in A[25] contained a footnote reference to: "Freedom from Torture, 'Sri Lankan Tamils tortured on return from the UK', 13 September 2012". 14 At A[36], the Authority concluded that the appellant did not meet the definition of a refugee in s 5H(1) of the Migration Act 1958 (Cth) and accordingly, did not satisfy the criterion for the grant of a protection visa under s 36(2)(a) of the Act. The Authority found the appellant did not satisfy the complementary protection criterion under s 36(2)(aa) of the Act: A[43]. 15 The Authority affirmed the decision of the delegate not to grant the appellant a SHEV.
Federal Circuit Court 16 On 13 September 2017, the appellant filed an amended application for judicial review in the Federal Circuit Court under s 476 of the Act. 17 The amended application contained one ground supported by three particulars. The primary judge proceeded on the basis that the application advanced three separate grounds, broadly similar to those originally advanced on this appeal. 18 The Federal Circuit Court rejected each ground and dismissed the appellant's application. Its reasons in respect of the issue raised on this appeal are set out below.
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.
Conclusion 29 It follows that ground four fails and the appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.
AKR17
Minister for Home Affairs
(2016) 237 FCR 1
(2013) 249 CLR 332
(2010) 240 CLR 611
(1997) 191 CLR 559
(1996) 185 CLR 259
(1999) 93 FCR 220
(1989) 169 CLR 379
(1999) 197 CLR 510