ATM18 v Minister for Home Affairs

The circumstances of the Appellant's departure from Sri Lanka 9 Both the delegate and the Authority accepted most, but not all, of the Appellant's claims as to what had led him to flee Sri Lanka. Most of these claims related to events which occurred in September 2012. 10 Before turning to those events it is necessary to go back a few steps into the recent history of Tamil politics. Although the LTTE has been dissolved there is still a Tamil political group called Tamil Makkal Viduthalai Pulikal ('the TMVP') which means the Tamil Peoples' Liberation Tigers. The TMVP was originally part of the LTTE but splintered from it and indeed it appears to have become pro-government. At the time the TMVP broke away from the LTTE it had close ground-level ties with government security forces. There had been reports that the previous government had turned a blind eye to criminal conduct by the TMVP because of the support it had rendered the government against the LTTE during the civil war. The criminal conduct in question had occurred relevantly in Batticalao and had involved targeting business people to obtain money and kidnappings. 11 But the Appellant had not been a member of LTTE and he was certainly not a member of the TMVP. His involvement with the TMVP arose, as the Authority appeared to accept, as follows: the Appellant was a computer technician and worked as a dealer for an IT firm, TW, although he was not employed by that firm but was a contractor. Part of his work involved selling computer parts. One day in September 2012 he received a telephone call from a person at the TMVP's office. The Authority referred to this person as 'N'. N asked the Appellant for a quote for laptops which they wished to have delivered to their offices. The Appellant then delivered three laptops to the TMVP's offices and was told by N that the corresponding invoices would be paid in two weeks. Because he was a dealer the Appellant was personally responsible for the amount which was owing so the non-payment of the invoices was his personal problem, and not TW's. 12 The Appellant waited for two weeks but no funds were forthcoming so he went back to the TMVP offices to collect the money which was due. He spoke with someone there. They told him they had never heard of N and that they would not be paying the invoice. The Appellant threatened to complain to the police. He then discussed the situation with his family. He returned to the TMVP offices and again sought payment but this was refused. He reiterated that he would be going straight to the police at which point he was told that were he to do that then he would be shot. 13 Undeterred, on 22 October 2012, the Appellant did lodge a complaint with the Batticaloa police that the TMVP had not paid the invoices and had also threatened to shoot him. In retrospect, it has become clear that this may have been the incorrect course of action. The following day he received a telephone call from the offices of the TMVP and was told to come and collect payment for the laptops. Upon arrival he was invited into a room where a person asked him why he had made the complaint to the police. At this point he was punched in the head, the police complaint was torn up in front of his face and a gun was pointed at his head. Other men then entered the room and he was bound and blindfolded before being driven to another location where he was kept in a dark room for a week and occasionally assaulted. On one occasion he overheard one of his captors suggesting to the others that they needed 'to finish this guy' and he at that point decided he had to make his escape. He did so when using the bathroom not long after and made his escape through the jungle. Eventually he came to a small cottage in the village of Kokkadichcholai (which is also in the Batticaloa District). He told the people inside it what had happened to him and they were kind enough to take him by bicycle to a nearby river. He crossed the river on a ferry and eventually came to the local church where he knew the priest through his previous involvement with the church. He stayed at the orphanage which was attached to the church for several months. He was advised to stay at the church until interest in him subsided. 14 But, according to the Appellant, the TMVP's interest in him did not subside. He claimed that the TMVP repeatedly visited his home looking for him while he was hiding out at the orphanage. He says he was sent four threatening letters. It was in these circumstances, then, that the Appellant had decided to flee Sri Lanka for Australia in April 2013. Although the Authority accepted most of the Appellant's claims up until his arrival at the orphanage it was sceptical of his claim to be of ongoing interest to the TMVP. It found that he had exaggerated this aspect of his account and furthermore that the four letters (copies of which he provided) were not genuine documents. It was, however, prepared to accept that the TMVP might have looked for him for a short period after he escaped through the jungle into the night but not to the extent he now sought to suggest. More importantly, asking itself the question of whether he would be pursued by the TMVP in 2018 (the immediate question it had to answer), the Authority did not think he would currently be of any interest to the TMVP given it had been more than four years since his kidnapping and escape. 15 This reasoning was sufficient to dispose of the Appellant's case that he would be persecuted by the TMVP if he returned to Sri Lanka. However, the Authority then went on to consider whether the Appellant might be entitled to protection because of his Tamil ethnicity. It concluded that he was not, principally on the basis that although Tamils who had links to the LTTE might face some difficulties if returned to Sri Lanka, the Appellant had no such links and hence would face no such problem. The Appellant's first ground of appeal concerns this conclusion.

Ground 1: Lack of probative basis 16 Although couched in terms of a probative basis, it is evident from the way in which the matter was conducted in the Court below that this ground was really directed at a contention that the Authority had reasoned irrationally. The argument went as follows: first, the Authority concluded that the Appellant was a Tamil without links to the LTTE; secondly, it had then inferred that Tamils without links to the LTTE were not at risk of being abducted by the TMVP; and, thirdly, it had drawn that inference on the basis of country information from which that inference could not be rationally drawn. 17 The first step is uncontroversial. The second step is more controversial because of a certain degree of ambiguity in what the Authority actually said at [29] (errors in original, footnotes omitted): While noting it was difficult to verify, DFAT said in its 2015 report it was aware of credible reports of groups like the TMVP still being active in Sri Lanka, including in criminal activity. However, neither DFAT nor the UK Home Office in their more recent 2017 reports, specifically report of civilians being harassed or abducted by the TMVP or Karuna in Sri Lanka. In its report to the UK Home Office also refers to a 2015 report by the International Truth and Justice Project, documenting more recent incidents of torture and abductions, including white van abductions, in Sri Lanka. It noted that overwhelmingly, the victims were identified as people the security forces suspected of assisting the LTTE and rigorously hunted down and punished extra judicially during the post-war era. DFAT's more recent 2017 report states that since the end of the civil war there has been a significant reduction in the incidents of extra-judicial killings, disappearances and abductions for ransom. While it is noted that some Tamils in the north and east may not have full confidence in police and security officers, DFAT assess that there is no law or Government policy in Sri Lanka that hinders access to state protection on the basis of religion or ethnicity. 18 This paragraph follows a section in the Authority's reasoning where it has accepted that the Appellant had been kidnapped by the TMVP but had concluded that he would no longer be of interest to them if returned. In this paragraph the first two sentences appear to be directed to the issue of whether the TMVP is still engaging in its previous criminal conduct with the conclusion being that it was not. Then the paragraph turns to the more general topic of whether persons are being kidnapped in Sri Lanka with the answer appearing to be that only those who have links to the LTTE have anything to worry about. It is not entirely clear whether this is a reference to the general population or just to Tamils. The juxtaposition with the last sentence which is about Tamils may suggest the latter. Although the matter is finely balanced, I think the better view is that [29] is a discussion of the position of Tamils. That conclusion is buttressed by the fact that there was really no reason for the Authority to be discussing in a review concerned with a Tamil the position of non-Tamils. So I would accept this second step in the argument. 19 The third step is the submission that the country information did not support the drawing of that inference. The country information in question is a 2017 report by the United Kingdom Home Office. That report was entitled Country Policy and Information Note: Sri Lanka - Tamil Separatism Version 4.0 and was dated 31 March 2017 ('the UK Report'). The relevant portion of that report is at para 8.5.2: The International Truth and Justice Protect (ITJP) report, A Still Unfinished War: Sri Lanka's Survivors of Torture and Sexual Violence 2009-2015, published in July 2015, documented 180 cases of post-war torture and/or sexual violence in Sri Lanka. Of these it had recorded 115 statements from witnesses and survivors, of which 100 were 'white van' abduction survivors. The report stated that 'The vast majority of victims of torture and sexual abuse in Sri Lanka are Tamils' and that 'These were people the security forces suspected of assisting the LTTE in the past and they have been rigorously hunted down and punished extra judicially in the post-war period.' 20 This would appear to support the correctness of the Authority's statement that only Tamils with links to the LTTE faced problems. The Appellant submits, however, that this is not correct. He says that it is apparent from the UK Report that it had relied on another report published in 2015 by the International Truth and Justice Project entitled A Still Unfinished War: Sri Lanka's Survivors of Torture and Sexual Violence 2009-2015 ('the ITJP Report'). The Appellant submitted that the ITJP Report did not actually prove what the UK Report said it did. The relevant portion of the ITJP Report cited by the UK Report is as follows: It is worth noting that while the vast majority of victims of torture and sexual abuse in Sri Lanka are Tamils, there are also a few Muslims and Sinhalese among our witnesses. These were people the security forces suspected of assisting the LTTE in the past and they have been rigorously hunted down and punished extra judicially in the post-war period. For witness protection reasons, details of their cases cannot be given lest we identify them. 21 As the primary judge noted, this passage is ambiguous. It is unclear whether the words 'These were the people…' qualify the word 'Tamils' or the words 'Muslim and Sinhalese' or both. If they only qualify the words 'Muslim and Sinhalese' then it will follow that the passage may suggest that Tamils need not have links to the LTTE in order to fall victim to the security forces. On the other hand, if the words do qualify the reference to Tamils then this will not be correct. 22 There is no need to resolve this ambiguity however. The immediate question is not whether the ITJP Report supports the statement in the UK Report but rather whether [29] of the Authority's reasons is susceptible to challenge on rationality grounds. The finding at [29] is a factual finding. Such a finding may be reviewable on rationality grounds if, for example, the finding is not open on the evidence or if there is no logical connection between the evidence and the inferences of conclusions drawn: see, e.g., Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]. However, that standard is not met here. The material which was before the Authority was the UK Report. It was not irrational for the Authority to reason from the UK Report to the finding at [29]. The fact that the UK Report might be in error (which is not self-evident either) cannot operate so as to render the Authority's decision irrational. This was the conclusion of the primary judge who was, with respect, correct. Ground 1 should be rejected.

Ground 2: Unreasonable failure to obtain the ITJP Report 23 Next it was submitted that it was legally unreasonable for the Authority not to exercise its power to obtain new information and to obtain for itself a copy of the ITJP Report. The relevant power of the Authority is contained in s 473DC of the Act which is as follows: Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 24 This power is subject to the requirement that it be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 at 607 [21], 613 [49], 618 [71] per Gageler, Keane and Nettle JJ, 620-621 [86] per Gordon J and 624 [97] per Edelman J. The Appellant sought to establish that it was unreasonable for the Authority not to exercise the power in s 473DC(1) because, first, the ITJP Report was 'new information'; secondly, the Authority plainly considered the ITJP Report to be relevant as it had cited it and relied upon it (because it was quoted in the UK Report); thirdly, it could easily have accessed a copy of it; and, fourthly, the UK Report misrepresented the findings of the ITJP Report. 25 I accept that the ITJP Report was new information but I do not accept that the Authority considered the ITJP Report to be relevant just because a reference to it appeared in a quote from the UK Report. What the Authority considered to be relevant was the UK Report which it cited. Assuming in the Appellant's favour that the UK Report did misquote the ITJP Report (a matter which is in my view far from clear), this was not known to the Authority so it cannot form part of the assessment of what was reasonable. The short of the matter is that the Authority had before it a report which suggested that Tamils who were not associated with the LTTE were not likely to be persecuted. There is nothing to suggest that the Authority had any reason to doubt the accuracy of that report. I cannot accept therefore the submission that it was unreasonable of the Authority not to call for the ITJP Report when it had, on the basis of what it knew, no reason to do so. The primary judge rejected this argument and was correct to do so.

Ground 3: Disregard of certain facts 26 Ground 3 was that the Authority had ignored or disregarded certain facts which the Appellant had endeavoured to explain at his interview with the delegate. These facts were that: The Sri Lankan authorities protect the TMVP; There was a connection between the TMVP ordering the laptops and the Sri Lankan authorities' interest in the Appellant; and The TMVP were criminals who were the cause of the disappearance of some Tamils. 27 The short answer to this ground is that the Authority did not disregard these matters. As to the first, at [16] the Authority said this: The available country information indicates the TMVP originally formed part of the LTTE but later broke away. The US Department of State noted at the relevant time that pro-government parties like the TMVP, had close ground-level ties with government security forces. There is also a report in the available country information of the former Rajapaksa government turning a blind eye to crimes committed by the group because of the support it rendered to the government in overcoming the LTTE during the conflict. Immediately after the war there were reports of groups like the TMVP targeting business people to collect money, relevantly, in Batticaloa. There were also reports of 'disappearances' and abductions relevantly in the east with some being linked to political parties. In September 2012 Eelam Nation reported that the then Rajapaksa government had arranged for hoodlums to terrorise Tamils, relevantly in Batticaloa, telling them if they voted for the TNA party or the Sri Lanka Muslim Congress the consequences would be dire. 28 The reference to turning a blind eye shows the Authority was aware that the TMVP had received assistance from the government security forces because of the help it had given the government during the civil war. However, the Authority subsequently reasoned at [27] that a change of government in 2015 had somewhat ameliorated the situation. The Authority then explained why it did not think that Tamils who were not associated with LTTE were at risk, drawing on para 8.5.2 of the UK Report excerpted above at [19]. Thus it is not correct to say that the Authority disregarded this matter. Rather, it was aware of it and disagreed with it on a reasoned basis. 29 As to the second point, the reasons of the Authority show that it certainly understood and, indeed, accepted the Appellant's account of the events involving the three laptops. There is nothing in the Authority's reasons corresponding with the suggestion in ground 3 raised by the Appellant that there was a connection between the TMVP ordering the laptops and the Sri Lankan authorities' interest in the Appellant. But there is no evidence before this Court as to what that connection was. This makes it impossible to assess the correctness of the submission. 30 In relation to the third fact that the TMVP were criminals, the Authority was aware from the 2015 Department of Foreign Affairs and Trade Report to which it referred at [29] that the TMVP had been actively involved in crime. I therefore reject the submission that the Authority failed to deal with that matter. 31 There is therefore no substance in ground 3. Since it was not raised below it requires a grant of leave before it can be pursued in this Court. Leave is refused.

Ground 4: Procedural unfairness 32 By this ground it was submitted that the manner in which the Appellant had been interviewed had been unfair. Since he was not interviewed by the Authority I take this to be a reference to the interview conducted by the delegate. Assuming in his favour that there was a denial of procedural fairness by the delegate difficult issues may arise. In ordinary merits review structures there is rarely much utility in inquiring into whether the primary decision maker has afforded procedural fairness to an applicant. This is because the matter is reheard by the review body and the question of what has gone before becomes irrelevant. But that is not the structure of Pt 7AA. The Authority does not conduct a fresh hearing but merely a review of the material which was before the delegate. The logic that supports the conclusion that review of a primary decision for procedural fairness is pointless does not self-evidently apply to Pt 7AA reviews. 33 The Federal Circuit Court has the same jurisdiction to review 'migration decisions' as the High Court has under s 75(v) of the Constitution: s 476(1) of the Act. The expression 'migration decisions' is very broadly defined and would include both a decision of the delegate and of the Authority: ss 5, 474(2). However, by s 476(2)(a) the Federal Circuit Court is denied jurisdiction where a migration decision is a 'primary decision'. The delegate's decision is a 'primary decision' within the meaning of s 476(4) since, relevantly, it is a privative clause decision (or purported such decision) that may be referred for review under Pt 7AA. Consequently, the Federal Circuit Court has no jurisdiction to review such a decision even though it is a 'migration decision'. Likewise, this Court has no original jurisdiction in relation to most migration decisions (other than in presently immaterial circumstances): s 476A(1). The only Court which could hear the Appellant's present contention that the delegate denied him procedural fairness is therefore the High Court. 34 Consequently, it seems to me that this argument cannot be accepted. For completeness, I did not apprehend the Appellant to advance the related argument that he was entitled to challenge the Authority's decision on the following basis: first, because the delegate had denied the Appellant procedural fairness the delegate's decision was invalid and there was no 'fast track decision'; secondly, accordingly the Authority had no jurisdiction to hear the review since there first needed to be 'fast track decision'; and, thirdly, its decision was therefore invalid. If such an argument had been advanced it would give rise to at least two interesting questions which need not delay these reasons: (a) can a Court whose jurisdiction to entertain a direct challenge to a decision has been explicitly removed nevertheless entertain the same challenge collaterally; (b) assuming the collateral challenge could be entertained, would this necessarily mean that the Authority had no jurisdiction or would one construe such a decision as being sufficiently valid to enliven the review process: Calvin v Carr [1980] AC 574. 35 This ground was not advanced in the Court below and I would decline to grant it leave to be pursued in this Court.

Ground 5: Misconstruction of claims 36 Next it was said that the Authority and the Minister (which I take to be a reference to the delegate) had misconstrued the Appellant's claims and had come to a wrong conclusion. I am not sure that this discloses an available ground of review but on the assumption it does the Appellant made the following points: The delegate and the Authority had misunderstood the reason why the Appellant had been required to hide in the orphanage; The delegate and the Authority had not permitted him to explain why he had had to hide from the TMVP during the interview (presumably with the delegate); The delegate and the Authority had completely ignored the fact that the TMVP members threatened to kill him if he complained to the police; and The delegate and the Minister had misunderstood the four letters which had been sent by members of the TMVP to the Appellant. 37 I do not think the first point is made good. The Authority explicitly mentioned the Appellant's account of why he had remained at the orphanage. This was because the priest had suggested that he stay there until the TMVP's interest in him died down. Ultimately the Authority thought that the TMVP's interest in the Appellant had diminished somewhat faster than his account might suggest. But regardless, one cannot say that the Authority did not consider this matter. So far as the delegate is concerned, for reasons I have already given I do not think that the Appellant's case can be advanced by reference to the errors of the delegate. 38 Because of the reference to the interview in the second point I take this to be a challenge to the delegate's decision. Again I do not accept that such a challenge is presently available. In any event, it seems to me that the Appellant was given an opportunity to persuade the delegate why he needed to hide from the TMVP and, indeed, it seems to me that this explanation was largely accepted. On review, the Authority's point was not that the Appellant had nothing to fear from the TMVP. Its point was that four years later it was unlikely that the TMVP would still be interested in him. So I do not accept this argument. 39 I also do not accept the third point which is not correct. The Authority in fact accepted that the TMVP had threatened to shoot him if he complained to the police. 40 As to the fourth point, the Authority did not misconstrue the letters. Rather, it thought they were not authentic.

Ground 6: 'Excessive authority' 41 The notice of appeal did appear to include a ground 6 although it lacked a heading. The ground was that the delegate and the Authority had used 'excessive authority' in rejecting the Appellant's claims. This does not disclose a known ground of review. 42 It may be that this is a reference to jurisdictional excess and hence to jurisdictional error. On the assumption that it is, ground 6 does not provide any detail on what the error might be. In that circumstance, it is unfortunately not possible to assess its merits.

Conclusions 43 I would decline to grant leave to the Appellant to allow him to pursue grounds 3 to 6. I have rejected grounds 1 and 2. The appropriate orders are that the appeal be dismissed and that the Appellant pay the First Respondent's costs as taxed or agreed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.