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[2021] FCA 1466
Federal Court of Australia
2021-11-23
Stewart J
Original judgment source is linked above.
Introduction 1 The appellant is from Jaffna, Sri Lanka. He is of Tamil ethnicity. He first arrived in Australia as an unauthorised maritime arrival in September 2012. He lodged an application for a Temporary Protection visa in late 2015. In June 2017, a delegate of the Minister for Immigration refused to grant the appellant a visa. 2 The decision of the delegate was referred to the Immigration Assessment Authority for merits review. The Authority affirmed the decision of the delegate. The appellant then successfully sought judicial review in the Federal Circuit Court which remitted the matter back to the Authority: DVG17 v Minister for Immigration and Anor [2018] FCCA 3842. 3 In a second decision in February 2019, the Authority again affirmed the delegate's decision not to grant the appellant a protection visa. 4 The appellant then sought judicial review of the Authority's second decision in the Circuit Court. This time he was unsuccessful, the application being dismissed on 12 May 2021: BBI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 968. 5 The appellant now appeals from the decision of the Circuit Court to this Court.
Background 6 The Authority summarised the appellant's claims for protection as follows, noting that I have numbered the paragraphs for ease of reference: 1. The applicant is a Tamil from the north but he was not involved in any fighting during the war and had no involvement with the LTTE other than some forced labour and having to give the LTTE some fish from his catch. However, in the closing stages of the war he assisted the Red Cross by ferrying wounded and injured persons from the shore to medical ships anchored out at sea. 2. When the war ended in 2009, he went to an Internally Displaced Persons (IDP) camp. He was questioned by the army and the Criminal Investigation Division (CID) on two or three occasions in 2009. They asked him about his involvement with the LTTE and why he had not crossed into government-controlled territory earlier. He was mistreated and assaulted during this questioning. 3. His younger brother, "U", was being held in a detention camp nearby. The applicant had some money from his fishing business and he gave this to U, to enable him to bribe his way out of the detention camp. U and another cousin disappeared from the detention camp and have not been seen or heard of since. The family believes they are both dead. After U's disappearance, the applicant was called in once by the authorities and asked if/how he had helped U to escape the detention centre. He was not harmed or mistreated during this questioning. 4. In 2010 the applicant was arrested for riding a motorcycle without a helmet and was held in custody for 14 days. He has not claimed being questioned, mistreated or otherwise harmed during this incident and period. 5. One of his sisters, J, came to the IDP camp in around 2010 or 2011. At this time the applicant was allowed to leave the camp for work and he also provided an assurance that J would remain in the camp. However, one day he came back from work and found that J had escaped from the camp. She and her husband fled to Australia shortly after. The CID called the applicant in to question him about J and although he was not harmed, he was told that he could no longer leave the camp and had to surrender his identity documents. 6. Shortly after this, the applicant escaped from the IDP camp and returned to the Jaffna district. He obtained new identity documents and a learner's permit and began working with his brother, R, as an ice-cream delivery driver. R had just been released from prison after serving a three year sentence and had to regularly report to the authorities. 7. R was abducted and tortured in 2012. As a result, R decided to flee Sri Lanka and arranged for the applicant to come with him. The applicant was then living in a High Security Zone and was scared of the authorities there so he agreed to come. Since they fled Sri Lanka, their mother has had to report to the police and court in relation to R and has been asked about R's whereabouts. 8. R has been involved in Tamil community in Australia and sung songs about Tamil independence. His car has the licence plate "I (heart symbol) LTTE" and he has spoken to Tamil National Radio. All of these things are on Facebook. J has also been involved in yearly Martyrs day events. 9. The applicant's wife has told J that in late 2018 the CID visited her and asked her about her and the applicant's mother (who is now in Australia) and that in January 2019 that they also visited to ask about the whereabouts of R and the applicant. They threatened that if she did not co-operate they would put her in a camp. 10. His wife may seek revenge because he left his family. 7 Save that he says that the Authority failed to include in that summary his claim based on his brother U having been an active member of the Liberation Tigers of Tamil Eelam (LTTE), the appellant takes no issue with that summary.
The grounds of appeal 8 The appellant's grounds of appeal are put as follows: 1. The Federal Circuit Court erred in finding that the second respondent had given proper, genuine and realistic consideration to the appellant's claims arising from the LTTE and separatist profiles of his family members. 2. The Federal Circuit Court should have found that the [Authority] overlooked the appellant's claim that his brother "U" had been conscripted by the LTTE. 9 Appeal ground 1 coincides with review ground 2 before the Circuit Court, and appeal ground 2 is a new ground that was not advanced before the Circuit Court. The appellant accepts that he requires leave to advance that ground. The two grounds of appeal are nevertheless closely related. At their heart is the appellant's contention that he will face persecution in Sri Lanka on account of members of his family having actual or perceived ties to the LTTE. 10 It will be observed that the appellant's protection claims numbered 3 and 5-9 at [6] above all relate to the possible LTTE and separatist profiles of his family members, including the position of his brother U. Those claims are accordingly all relevant to the grounds of appeal.
Consideration 11 As acknowledged in the judgment of the Circuit Court, the Authority's reasons for its decision are long and detailed. The Authority's detailed treatment of the possible LTTE and separatist profiles of the appellant's family members is summarised in the judgment of the Circuit Court at J[6]-[22]. No purpose is served in repeating it here. 12 The Circuit Court concluded (at [50]) in relation to review ground 2 in that proceeding (i.e., appeal ground 1 in this proceeding) that the Authority in its reasons comprehensively dealt with the appellant's familial ties, including those of his siblings, but formed the view that these were insufficient to give rise to an adverse profile of the appellant with Sri Lankan authorities. The Authority concluded that the appellant's own profile was not such that he was of adverse interest to Sri Lankan authorities in the years leading up to his departure, and post-departure, from Sri Lanka. The Circuit Court concluded that there is nothing illogical, irrational or legally unreasonable in those findings and they were open to the Authority on the evidence that was before it and for the reasons it gave. 13 The critical part of the Authority's reasons for the purposes of the appellant's submissions on appeal is the following (omitting footnotes): 35. In making my findings, I have taken into account the country information submitted by the applicant's representatives. I have taken into account the report of the ITJP concerning the Sri Lankan authorities being aware of evidence of Tamil separatist activities abroad (such as attendance at protests) through Facebook and photos. I have given substantial weight to the latest DFAT report because it is recent, authoritative and based on DFAT's on the ground knowledge and discussions with a range of sources as well as taking into account relevant and credible open source reports including those of the UNHCR, western governments and human rights organisations and Sri Lankan non-governmental organisations. Furthermore, it has been specifically prepared with regard to the current caseload for decision-makers in Australia. Based on the country information before me, conditions in Sri Lanka, particularly in the north and east (where the applicant comes from) have significantly improved since the ending of the war in 2009 and from when the applicant left the country. DFAT have assessed that monitoring of Tamils in day-to-day life in has decreased significantly under the current government though surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues. … DFAT have stated that the number of incidents of extrajudicial killings, disappearances and abductions for ransom, including incidents of violence involving former LTTE members has reduced significantly since the ending of the conflict and disappearances are no longer common. … 37. In making my findings, I have also taken into account the June 2017 UK Home Office report on Tamil separatism. In 2017, the United Kingdom Home Office (UKHO) reported that the new government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the Sri Lankan state. Its focus is on preventing (a) the resurgence of the LTTE or any similar organisations and (b) the revival of the civil war within Sri Lanka. Referring to UK Upper Tribunal case law, the UKHO noted that that Tribunal has identified four categories of persons at risk of persecution or serious harm. These are: • Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka.; • Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government; • Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes; and • A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant. 38. The UKHO have also stated the following in terms of Tamil profiles of interest to the Sri Lankan authorities that a person being of Tamil ethnicity would not in itself warrant international protection. Neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it; or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state. 39. DFAT has stated that the UNHCR in 2012 identified a range of people with real or perceived links to the LTTE as including persons with family links or who are dependent on or otherwise closely related to persons with profile of being former LTTE combatants and cadres. They have further stated that the Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The Tamil National Alliance and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. 40. I note that the information from the UNHCR is seven years old and that the more recent information from the UK Home Office and DFAT does not support that the applicant faces a real chance of being seriously harmed on account of R, J or any of his family members. The applicant has not claimed to have been involved in any post-conflict Tamil separatist activities either in Sri Lanka or in Australia. Whilst I accept that he may be monitored and questioned on account of his family members, I do not accept that there is a real chance that upon return he will be imputed will be a pro-LTTE or Tamil separatist opinion by the Sri Lankan authorities or anyone else and be harmed as a result. [sic] 14 The ITJP report referred to is a report of the International Truth and Justice Project in 2017. The DFAT report referred to is dated May 2018. 15 The Authority concluded that there was nothing to indicate that the appellant himself has been involved in any activities since he arrived in Australia that would impute to him an LTTE or Tamil separatist political opinion. It considered that it is plausible and possible that the appellant may be asked some questions about R and J or other family members should he return to Sri Lanka, but it did not accept that the appellant would be suspected of any criminal offences or that he would have an adverse profile with the authorities or anyone else. The Authority found that any such questioning about his siblings would be of a general nature and if it was to occur, it would not constitute serious harm. 16 The Authority concluded that the appellant was not of any interest to the authorities in Sri Lanka at the time of his departure from the country, and it found that he has not become a person of interest since he left Sri Lanka. 17 The appellant submits in writing that the Authority failed to sufficiently or properly engage with the appellant's circumstances for the following reasons: (1) The UKHO report says "in general" which indicates that that there are still cases where family connections with LTTE may be sufficient to attract harm. (2) The country information accepted by the Authority was that "In 2017, the United Kingdom Home Office (UKHO) reported that the new government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the Sri Lankan state." While the appellant has not claimed to have participated in post conflict separatist activities, the Authority accepts that both R and J have engaged in the activities as claimed by them. R was engaging openly in the very activities that the country information referred to by the Authority indicated would be of adverse interest to the Sri Lankan authorities. In these circumstances it is difficult to see how the appellant would not also be perceived as being sympathetic to the activities of his siblings given that, like them, he had travelled "illegally" to Australia. The Authority does not demonstrate an engagement with this question by simply stating that the appellant would not have an adverse profile. (3) No mention is made of the claim that the appellant's brother U had been recruited as an LTTE cadre but had then escaped from the LTTE before being "disappeared" by a white van. The disappearance of the brother after escaping from the LTTE is another factor which would add to the perception that the appellant's family were aggrieved by the Government actions against them. (4) The Authority makes no specific mention of the fact that sister J and her husband had been serially interrogated and mistreated because weapons had been found buried on their property. While it is true that the Authority finds that there was no interest in the appellant before he left Sri Lanka this does not take into account what affect the subsequent activities of his sister and brother may have had on the significance of the suspicion that J had been involved in hiding LTTE weapons in the past. (5) The Authority does not advert to the threats to J and her husband that they would suffer the same fate as U - which was indicative of the way the authorities viewed the family and which carried the implication that they were responsible for U's disappearance. (6) No specific mention is made of the fact that both R and J were effectively "on the run" when they travelled to Australia. 18 In oral submissions, the following matters were emphasised on behalf of the appellant: (1) The Authority acknowledged that the LTTE had buried "things" on property belonging to the appellant's sister J which had caused her and her husband to be questioned by the authorities, but it had not identified that those "things" were weapons. It is submitted on the appellant's behalf that the fact that they were weapons is significant and places a different complexion on the interest that the authorities have in J and hence that they will likely have in the appellant. (2) Shortly before the decision of the Authority, the appellant's sister J signed a statement dealing with various matters and stating that in January 2019 she was told by the appellant's wife that the CID had visited her and had asked about the whereabouts of the appellant. The Authority considered the statement and accepted everything in it except that it did not accept that the authorities had made enquiries about the appellant because it had not made enquiries about him in the six years since he had departed Sri Lanka and because he did not have an adverse profile with the authorities when he departed the country. It is submitted on the appellant's behalf that the Authority was in jurisdictional error in failing to accept that the Sri Lankan authorities had recently made enquiries about the appellant's whereabouts and that that is a highly significant matter. (3) The appellant's brother R has had prominent involvement in Sri Lankan separatist activities in Australia including on video and radio and readily apparent from his personal Facebook profile. R would consequently have a very significant profile in the eyes of the Sri Lankan authorities. A 2017 report from the ITJP says that the authorities maintain a keen interest in the Tamil separatist activities of Sri Lankans abroad and that family members have been questioned in Sri Lanka about such activities. It is submitted on behalf of the appellant that these factors were not given proper, genuine and realistic consideration by the Authority. 19 In the present case the Authority was required by s 473CC of the Migration Act 1958 (Cth) to "review" the decision of the delegate and to either affirm the decision or remit the decision for reconsideration in accordance with such directions or recommendations as are permitted by regulation. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [17] per Gageler, Keane and Nettle JJ, it was explained that notwithstanding the inability of the Authority to substitute its own decision for that of the delegate, the task of the Authority is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. 20 The ground of review relied on by the appellant, namely that the Authority had failed to give "proper, genuine and realistic consideration" to particular matters, has its source in a number of High Court and Full Court authorities. It is to be noted that some of the authorities deal with what it means for a decision-maker to have to "consider" some or other matter, and others with what it means for a decision-maker to have to "review" some or other matter, as in the present case. It does not appear to be a relevant difference, particularly considering that the requirement to "review" the delegate's decision itself required the Authority to "consider" the review material - "consider" being the verb used in Plaintiff M174. 21 The following can be distilled from the authorities: (1) There is a danger in using an expression such as "proper, genuine and realistic consideration" as it could draw the court into an impermissible merits review: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; 252 FCR 352 at [31]-[34] per Griffiths, White and Bromwich JJ. (2) When a decision-maker is required by statute to consider a claim or other mandatory criterion, the decision-maker must engage in an "active intellectual process directed at that claim or criterion": Carrascalao at [45], [46]. (3) Whether or not there was an active intellectual process requires the court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case: Carrascalao at [47]. (4) The degree of considerations which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence of the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [37] per Reeves, O'Callaghan and Thawley JJ. (5) A finding by the court that the decision-maker did not engage in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof: Carrascalao at [48]. (6) The decision-maker is not required to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria: Carrascalao at [45]. (7) The reasons of the decision-maker under review are not to be "construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. (8) It is necessary to read the reasons in light of the whole case as it was before the decision-maker, which might have involved more issues than are raised, and more evidence than is before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the decision-maker and its prominence assessed by reference to all of the issues and the way in which the matter was conducted before the decision-maker: Singh at [37]. (9) The decision of the decision-maker must be considered in the light of the basis upon which the application to it was made, not upon an entirely different basis which may be raised at some later stage in the process of decision-making, reviews and appeals: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [1] per Gleeson CJ; Singh at [38]. 22 In my view, there was no error by the Circuit Court in its assessment of the reasons of the Authority in relation to this ground. The various points that are made by the appellant with regard to the strength of the association, and perceived association, of his siblings with the LTTE do not assist him in establishing that he would likely be perceived to be associated with the LTTE and persecuted on account of that. That is because the nub of the Authority's reasoning is that the appellant does not himself have a pro-LTTE or Tamil separatist profile and that, other than it being likely that he would face questioning about the involvement of his siblings or other family members with the LTTE or their involvement in Tamil separatist activities, he would not likely face persecution if returned to Sri Lanka. The extent of the involvement of his family members, and the extent to which the Sri Lankan authorities may be interested in his family members, even if under-assessed by the Authority, does not establish that the authorities would have any sufficiently adverse interest in the appellant. 23 In any event, the assessment of those matters is for the Authority, not for the Court. The Authority took account of the involvement of the appellant's sister J and brother R in Tamil separatist activity, and of their likely perceived sympathy to the LTTE. It however concluded that this would not reflect badly on the appellant himself in the eyes of the Sri Lankan authorities - or, at least, not sufficiently badly to put him at risk of serious harm. That conclusion was open to the Authority on the basis of the most up-to-date country information before it, as it explained. 24 The remaining point raised by the appellant in relation to his siblings, namely that he, like them, had travelled "illegally" to Australia, is not a factor that could be considered as likely to cause him to be perceived as LTTE. 25 The Authority identified and weighed the various factors. It was open it to conclude that it was not likely that the appellant upon return to Sri Lanka would be imputed with a pro-LTTE or Tamil separatist opinion by the Sri Lankan authorities or anyone else and face serious harm as a result. It is not established that the Authority failed to properly or adequately review the decision of the delegate on account of having failed to give proper, genuine and realistic consideration to any significant aspect of the evidence. 26 As mentioned, the appellant also places reliance on the Authority's rejection of J's evidence that the authorities in Sri Lanka had only recently been asking after him. However, the Authority gave two reasons for not accepting that evidence, namely that the authorities had apparently made no enquiries about the appellant in the more than six years since he departed Sri Lanka, and that he did not have an adverse profile with the Sri Lankan authorities when he departed the country. Whether or not the Court would have come to the same conclusion with regard to that evidence, the Authority's reasoning is plausible. It was for the Authority to assess the evidence. No basis for the Court to intervene has been established. 27 In any event, it might be observed that even if it had been accepted that the Sri Lankan authorities had asked after the appellant, that would not likely have affected the overall reasoning of the Authority. That is because the authorities wanting to question the appellant is quite consistent with the Authority's conclusion that if he returned to Sri Lanka it is likely that he will be questioned by the authorities about his siblings. 28 The ITJP report was considered by the Authority. That is apparent in the Authority's paragraph [35] (quoted at [13] above) and also at [45] where it stated that it had taken into account, from the ITJP report, that a large majority of returned Tamil Internally Displaced Persons (IDPs) have been registered by the military and later visited by the military or CID in Sri Lanka. There is no basis to the submission that the report was not given proper consideration. 29 Appeal ground 1 must accordingly fail. 30 Appeal ground 2 is closely related to appeal ground 1. It concerns the appellant's brother, U, and asserts that the Authority overlooked the claim that U had been conscripted by the LTTE. 31 The Authority dealt with the claim in relation to U as follows (at [21]): The applicant claims that he was also questioned by the authorities in 2009 after he helped his brother, U, to escape from a detention camp. At the TPV interview, the applicant said that he had saved money from his fishing business and gave U 200,000 rupees to pay a bribe. The applicant did not speak with or meet the people who were helping U to escape. He does not know what happened to U, who has not been seen or heard of since this time, but he believes U escaped from the detention camp before being killed. At the TPV interview, the applicant was asked how he was able to carry a large amount of money into the IDP camp and then get it into a detention camp. The applicant said that his mother held the money for him and he got it from her then gave it to U. I have serious doubts that the applicant was able to obtain and retain such a large amount of money whilst in an IDP camp and that he could then give it to a person in a detention (as opposed to an IDP) camp without being stopped, searched or questioned by the authorities. However, even if these claims are true, the applicant's evidence is that he passed the money directly to U and was not involved with any officials or any other person during this process. I consider that it is credible that the applicant may have been asked questions about U's sudden disappearance and I accept his claim that he was questioned by the authorities for this reason. However, he was not detained, removed to a detention centre himself, or subject to any further questioning or interest in relation to U at this time or in the three years that passed before he left Sri Lanka. I do not accept that his role in giving U financial assistance was or would now be known to the authorities but even if it was, the applicant merely gave money to his brother. He was not involved in bribing any officials and had no contact with the persons who made the arrangements. I find that any interest the authorities had in the applicant in 2009 was very minor and given the lack of any follow up since that single incident of questioning, I find that he is not of ongoing adverse interest to the authorities in relation to the disappearance of U. 32 The appellant relies on a statement in the delegate's reasons which references the conscription of U by the LTTE as a basis to his "claim" for protection in reliance on that asserted fact. Relevantly, the delegate stated the following: When asked about his claim that he paid money to help his brother leave the IDP camp, the applicant stated that his brother [U] was forcibly recruited by the LTTE in 2008, but he escaped from the LTTE and came to the Ananda Kumarasamy IDP camp. 33 There is no basis upon which it might be said that the appellant made any particular claim based on the recruitment, forced or otherwise, of his brother by the LTTE - it appears to have been merely a remark in explanation of something else. Further, even if there was, it is not apparent what possible difference that might have made to the reasoning and conclusion of the Authority. It is apparent that the Authority left that detail out of its summary of the appellant's claims and evidence because it did not regard it as significant. It cannot be faulted for that because the fact in question could not reasonably affect the conclusion that the appellant would not be regarded by the authorities in Sri Lanka as being pro-LTTE or a Tamil separatist on account of the likely profile of his siblings. 34 The point is also bad for another reason. Along with the statement that U had been forcibly recruited by the LTTE is the statement that he escaped from the LTTE. He therefore cannot be seen, on that information, to have been a genuinely supportive LTTE member. The fact of him having been forcibly recruited therefore reflects no more adversely on him as far as the Sri Lankan authorities are concerned as he was in any event apparently regarded by them given that they held him in a detention camp from which he escaped. 35 In the circumstances, the proposed ground 2 has no merit and is on that basis alone not deserving of leave.
Conclusion 36 The appeal must accordingly be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.
BBI19
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs