ATW15 v Minister for Immigration and Border Protection

1. The applicant be granted leave to rely upon the amended application for extension of time and leave to appeal attached to the written submissions for the applicant dated 23 November 2017.
2. The amended application for extension of time and leave to appeal be dismissed.
3. The applicant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This is an application for an extension of time for leave to appeal and for leave to appeal against orders of the Federal Circuit Court of Australia dismissing an application for review of a decision of the Refugee Review Tribunal pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application does not raise an arguable case for the relief claimed. 2 The Federal Circuit Court published reasons for its decision in ATW15 v The Minister for Immigration and Border Protection and Anor (2015) FCCA 1830 on 2 July 2015 and made its orders dismissing the application at the same time. It is common ground that the application for leave to appeal was filed approximately two weeks out of time. It is also common ground that the then-solicitor for the applicant has provided an adequate explanation for the delay so that if the application for leave to appeal itself had merit, the extension of time ought to be granted. The Minister also accepts that if the proposed appeal has merit the application for leave to appeal should itself be granted. The Minister's position is that the proposed appeal does not have any real prospect of success so that the applications for an extension of time and leave to appeal ought to be dismissed. 3 The applicant is represented by counsel in respect of these applications for leave. Counsel has filed written submissions in support of the application and made oral submissions today. Counsel indicated that the applicant did not suggest that the primary judge had erred in respect of any of the arguments that had been put before her Honour during the hearing on 2 July 2015. Rather, leave is sought to rely upon an amended application identifying a single ground in the following terms: One reason the applicant feared returning to Sri Lanka was because of his Tamil ethnicity. The RRT reasoned that, because the security situation in Sri Lanka has "greatly improved" since the end of the civil war in Sri Lanka in 2009, the applicant does not face a real chance of serious harm on the basis of his Tamil ethnicity. This involves an error in applying the real chance test, which is a jurisdictional error. 4 It is contended that the Tribunal engaged in an illegitimate form of reasoning to the effect that merely because the security situation in Sri Lanka had "greatly improved" since the end of the civil war in 2009, the applicant necessarily did not have a real chance of serious harm on the basis of his Tamil ethnicity. 5 Having read the written submissions for the applicant and the reasons for decision of the Tribunal dated 5 May 2015 and heard the oral submissions put by counsel for the applicant, I am unable to accept that this argument has any material prospect of success. 6 It is apparent from the Tribunal's reasons that it gave detailed consideration to the applicant's claims. At paragraph 12 of its reasons, the Tribunal found that "most of the applicant's claims … have been fabricated." The Tribunal, however, did accept that the applicant was a Tamil male from the Eastern Province of Sri Lanka. 7 At paragraphs 46 to 55 of its reasons for decision, the Tribunal explained why it did not consider that these facts supported a well-founded fear of persecution. Given the nature of the ground of challenge on which the applicant relies, it is appropriate to set out those paragraphs in full (footnotes excluded): Tamil 46. The tribunal accepts the applicant is a single Tamil male from Eastern province. 47. The tribunal accepts that the independent evidence indicates, at least until the end of the civil war in 2009, that Sri Lankan citizens of Tamil ethnicity suffered disproportionately at the hands of the Sri Lankan authorities, particularly in North and East areas. The independent evidence indicates that during the civil war many thousands of Tamils disappeared, presumed dead, and thousands of others were killed or injured. The tribunal also accepts continuing detentions and torture against particular Tamils, who may be suspected LTTE or criminals, even since the end of the war. 48. However, the security and humanitarian situation in Sri Lanka has greatly improved since the end of the war. 49. Further, the tribunal notes advice from the UNHCR that, whilst Tamil ethnicity has been a risk factor in Sri Lanka in the past, particularly for Tamils originating from LTTE controlled areas, this is no longer the case. According to the UNHCR eligibility guidelines in 2010 and 2012, due to improved human rights and security situation there was no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity. This was also confirmed in the UK Upper tribunal country information. The tribunal does not accept that mere Tamil ethnicity or being a Tamil male means the applicant faces a real chance of serious harm. 50. The tribunal accepts that persons with LTTE associations may be at risk of harm upon return to Sri Lanka. Country information in UK upper tribunal decision suggests the authorities approach is based on sophisticated intelligence as to activities in Sri Lanka and in the diaspora. The authorities know many Tamils travel abroad as economic migrants and that everyone in LTTE controlled areas had some contact with the LTTE during the war. Rather in the post conflict environment, authorities are interested in individuals perceived to be a threat to the integrity of Sri Lanka as a single state because they have perceived to have a significant role in relation to post conflict Tamil separatism or renewal of hostilities. In the post conflict environment an individual's past history will be relevant only to the extent that it is perceived by authorities as indicating a present risk to the unitary state. The tribunal accepts that persons with such a profile are at risk of harm upon return to Sri Lanka. 51. However the tribunal does not accept the applicant has such a profile or is at risk of harm upon return to Sri Lanka. As discussed the tribunal does not accept his past harm during the civil war puts him at risk of being perceived as LTTE or anti-government or risk of harm or to the attention of authorities. The tribunal does not accept that his scarred injuries from a bomb blast when he was a child put him at risk in the post conflict environment. The authorities know many Tamils travelled abroad as economic migrants and also that many people in LTTE controlled areas were affected by the war or had some level of involvement with the LTTE during the war. In post conflict Sri Lanka an individual's past history will be relevant only to the extent that it is perceived as indicating a present risk to the unitary Sri Lanka state. Further, the applicant was not detained or sent to a rehabilitation camp towards the end of the war, so is not suspected of LTTE. Even accepting his brother's nomination in 2012 elections, the tribunal does not accept the applicant is at risk of harm or that it raises his profile. Firstly, the brother did not run for the elections as he had left Sri Lanka. Secondly, the applicant and brother do not have a political profile nor do they have any interest in politics. Thirdly, the tribunal has found the applicant and his brother will not be involved in politics in the future by their own choice as they have no interest. 52. The tribunal does not accept the applicant has any antigovernment or pro LTTE or political activist profile as the tribunal has not accepted his claims regarding such a profile. The tribunal has not accepted he is of adverse interest to authorities or will be in the future. The tribunal does not accept that he has any criminal charges, warrants for his arrest, is suspected of being anti-government or involved in or interested in Tamil separatism or reviving the conflict or that he had any connection to or association with LTTE. 53. Based on the country information the tribunal finds that Tamils do not face a real chance of suffering serious harm solely on account of their ethnicity from the Sri Lankan authorities. Further, having considered the applicant's circumstances, the tribunal does not accept that the applicant faces a real chance of harm for reasons of his ethnicity. 54. Based on the evidence before it, the tribunal is not satisfied that there is a real chance of serious harm, including any denial of access to health and education, or the ability to subsist, or any denial or social or economic rights, as a result of the applicant's ethnicity (being a Tamil, a single male Tamil from the East or one who relocated from Vanni) and / or political association or any other reason, in the reasonably foreseeable future. The applicant is educated and has in the past earned an income from demining and there is no reason he could not do so again or find similar work in the future. The tribunal does not accept he could not do so again in the future. The tribunal does not accept the applicant faces a real chance of suffering mistreatment or discrimination that would constitute serious harm for the purposes of s91R(1)(b) having regard to the guidance provided by the examples as set out in s.91R(2) upon return to Sri Lanka. The tribunal has considered the harm the applicant faces a real chance of suffering, including the harm feared as a returnee discussed below, cumulatively, and is not satisfied he faces a real chance of suffering discrimination and mistreatment that would amount to serious harm. 55.Considering the applicant's circumstances and the independent information the tribunal does not accept that the applicant faces a real chance of persecution because of Tamil race or ethnicity or membership of a particular social group as a young Tamil male or male Tamils, Tamil from the East or because of his work in demining or with NGOs. 8 It will be apparent that the Tribunal's finding that Tamil males do not face a real chance of suffering serious harm solely on account of their ethnicity was based on country information. The Tribunal says as much at paragraph 53 of its reasons. However, I do not accept that the Tribunal reasoned as the applicant proposes. It is true that at paragraph 48 the Tribunal found that the security and humanitarian situation in Sri Lanka had greatly improved since the end of the war. The Tribunal relied on a Department of Foreign Affairs and Trade country report in support of this factual finding. The applicant does not challenge this factual finding but rather contends that the Tribunal reached its conclusion based on this factual finding alone which was insufficient to provide a logical foundation for the ultimate factual finding that the applicant did not have a well-founded fear of harm. 9 The applicant also contends that the information on which the Tribunal relied in paragraph 49 of its reasons provided an inadequate foundation for the factual finding. In support of this argument, the applicant's counsel tendered UNHCR Eligibility Guidelines for Assessing the Internal Protection Needs of Asylum Seekers from Sri Lanka (the UNHCR guidelines) dated 21 December 2012. These guidelines and an earlier version of the guidelines from 2010 are referred to in paragraph 49 of the Tribunal's reasons. In that paragraph the Tribunal cites this information as stating that "due to improved human rights and security situation there was no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity." 10 I accept that the 2012 UNHCR guidelines do not use the same language as the Tribunal. However, the terms of the guidelines adequately support the Tribunal's finding of fact. It is plain from those guidelines that it is not suggested that mere Tamil ethnicity and nothing more is itself necessarily a basis for a person being at risk of harm. 11 The other difficulty for the applicant is that in paragraph 49 the Tribunal refers to other information. It refers to the 2010 UNHCR guidelines which are not in evidence before me, as well as the United Kingdom Upper Tribunal country information (another document which is not in evidence). In the footnote to paragraph 49, there is also a reference to a US State Department report of 21 December 2012 which is not in evidence. Given this, there cannot be any conclusion that the finding made by the Tribunal in paragraph 49 was other than reasonably open on all of the material available to the Tribunal and had a logical and rational foundation. 12 The applicant also does not challenge the factual findings of the Tribunal in paragraphs 50 and 51 of its reasons for decision, nor those in paragraph 52. Given these considerations, I am unable to accept that any legal error is disclosed in the Tribunal's reasons in paragraphs 49 and 53. 13 In these circumstances, there is no utility in the applicant being granted either an extension of time or leave to appeal. 14 Accordingly, my orders are as follows: (1) The applicant be granted leave to rely upon the amended application for extension of time and leave to appeal attached to the written submissions for the applicant dated 23 November 2017. (2) The amended application for extension of time and leave to appeal be dismissed. (3) The applicant pay the first respondent's costs as agreed or taxed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.