BSY16 v Minister for Home Affairs

background AND REASONS OF THE TRIBUNAL 7 The background was set out by the Federal Circuit Court at J[2] to J[8] of the judgment in terms which were not suggested on appeal to be in any way incorrect (footnotes omitted): [2] The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 11 May 2012. On the following day he engaged in what is called a "Biodata" interview with an officer of the Department of Immigration. On 23 May 2012, the applicant was again interviewed by an officer of the Department. This interview was called an "Irregular Maritime Arrival Entry Interview". [3] On 27 July 2012, the applicant lodged an application for a protection visa. The following summary of his claims is taken from the applicant's written submissions filed on 30 January 2018 (January submissions), which may be accepted as accurate for present purposes: 12.1. The applicant's brother in law was shot by the army in 1988. 12.2. The applicant was suspected, interrogated or falsely accused in relation to the death of a senior Singhalese police officer during riots in 2005 because he was an auto-rickshaw driver. 12.3. A colleague of the applicant was killed in January 2006. 12.4. One of the applicant's distant relatives with a similar name was abducted and killed because he was believed to have been involved in the riots and the killing of the police officer. 12.5. The army came to the applicant's shop in 2006, beat his friend up and confiscated bicycles and tools because they blamed the applicant for a nearby bomb blast. 12.6. The applicant [had] closed his bicycle repair business and worked as a driver from home one month after the incident ... 12.7. In January 2007, a distant relative of the applicant, a fellow auto-rickshaw driver, was abducted by army people in a white van and killed. The day before he was shot and killed, the applicant's relative had told the applicant that the army had come to his house asking for directions. 12.8. A relative of the applicant with a similar name was caught and beaten by the Sri Lankan army. 12.9. The SLA visited the applicant's home on three occasions between January and December 2007 but he was not home. 12.10. The applicant resided in the homes of his relatives before obtaining a pass to travel to Colombo from Jaffna through the assistance of his sister who knew someone in the EDPD. 12.11. The applicant resided in Chennai, India between 27 December 2007 and 25 April 2012. The applicant travelled to India with his sister on a medical visa. 12.12. The applicant was interrogated by officers of the Indian intelligence organisation, Q Branch, as to whether he was part of the LTTE. 12.13. The applicant left India in part, due to the problems he faced with the Q police and because he had no rights in India as he was registered as a refugee. 12.14. In 2012, the applicant's brother telephoned him and said that the LTTE had come to his house. 12.15. The applicant's brother-in-law's brother was a former member of TELO who was killed in March 2015. The applicant claimed to fear serious harm on return to Sri Lanka because of: 13.1. His ethnicity as a Tamil; 13.2. His imputed political opinion as having perceived involvement or links with the LTTE and as a resident in the North. 13.3. His membership to particular social groups comprising failed Tamil asylum seekers returning from a Western country, former Indian refugees who are returned involuntarily from a Western country as failed asylum seekers and three wheeler drivers who originate from the North of Sri Lanka. [4] On 11 September 2012, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal (RRT) for review of that decision. [5] The RRT held a hearing on 4 December 2012 and made a decision on 11 March 2013 to affirm the decision of the delegate. However, that decision was set aside by orders made in this Court on 17 June 2013 and the matter was remitted to the RRT for completion of the review of the delegate's decision. [6] The RRT was differently constituted for the purposes of completing the review and the applicant attended two further hearings before the RRT on 23 September 2013 and 18 December 2014. [7] On 1 July 2015, the Tribunal assumed the functions of the RRT and continued the review of the delegate's decision. On 5 August 2015, the Tribunal was reconstituted because the member who had previously constituted the RRT ceased to be a member of that body on 30 June 2015 and did not become a member of the Tribunal. There is no issue in these proceedings about that reconstitution. The Tribunal conducted a hearing on 2 November 2015, following which further written submissions and other information were provided by the applicant's representatives on 9 November 2015. [8] On 29 June 2016, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. 8 The Tribunal's reasons were carefully and extensively set out. The primary judge said of them: [9] The Tribunal's reasons for decision are set out in a 78 page document in which the Tribunal sets out in considerable detail the procedural background to its decision, each of the claims and submissions made by the applicant, the country information relating to the circumstances that might affect the applicant upon return to Sri Lanka, and its assessment of all those matters. It is, on any view, a comprehensive set of reasons. [10] The aspects of the Tribunal's reasons which are the focus of the grounds of judicial review are addressed in some detail below. For present purposes, and without any disrespect to the Tribunal's detailed reasoning, it may simply be noted that the Tribunal rejected the bulk of the applicant's claims because it found that the applicant was not a witness of truth. Further, it found that there was no real chance that the applicant would be suspected of being an LTTE supporter or having links with the LTTE or as having an anti-government profile or would be so suspected in the future. It found that the applicant would not suffer persecution because of his Tamil ethnicity or as an involuntary returnee and in particular as a returnee asylum seeker. For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision of the delegate. 9 It is not necessary for the purposes of this appeal to set out the Tribunal's reasons in detail. However, it is convenient to set out the conclusions expressed at T[356] and T[359] to T[365] which are particularly relevant to the Federal Circuit Court's decision and to this appeal: [356] The Tribunal has considered whether there is a real chance of serious harm in the reasonably foreseeable future. The UNHCR Eligibility Guidelines for Sri Lanka have identified risk profiles of those persons who may be in need of international protection. The UNHCR Eligibility Guidelines indicate that persons suspected of certain links with the LTTE may be in need of protection. The Tribunal has considered the applicant's claim that he will be suspected of being an LTTE supporter or having links with the LTTE, or being antigovernment, by the authorities or paramilitaries linked to the authorities, if he returns to Sri Lanka. The Tribunal has considered the applicant's claim that this is related to his identity as a Tamil from the Eastern Province and young Tamil male. The Tribunal is not satisfied, on the evidence before it, that there is a real chance that the applicant will be suspected of being an LTTE supporter or having links with the LTTE, or being anti-government, by the authorities or paramilitaries, if he returns, for the following reasons. Based on its assessment that the applicant is not a credible or truthful witness, the Tribunal does not accept the applicant's claims that his family's business was bombed by the Karuna Group or any other paramilitary group, the military or any other group or individual. The Tribunal does not accept that the Sri Lankan authorities, men in white vans, the Karuna Group, any other paramilitary group linked to the authorities or any other group or individual had any ongoing interest in the applicant or any family member, nor that there is a real chance that they will do so in the reasonably foreseeable future. [359] Based on the independent country information, in combination with its assessment of all of the applicant's circumstances, the Tribunal does not accept that the applicant would be perceived as anti-government, or supportive of LTTE merely because of being a returnee asylum seeker or because he departed illegally. The Tribunal is not satisfied there is a real chance of persecution for any Convention reason in Sri Lanka based on his circumstances, individually or cumulatively, as a Tamil male, young Tamil male, unmarried Tamil male, Tamil male from the North, returned asylum seeker from a Western country/Australia, and his form/mode of departure, or any combination of these factors. [360] On the basis of all the evidence, the Tribunal is not satisfied that there is a real chance of serious harm on the basis of actual or imputed political opinion on the basis of his claim as a suspected LTTE member, supporter or the member of a family with the same level of suspicion, were the applicant to return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal does not accept his claims that he will be killed, arrested or tortured, as the Tribunal does not accept that he is a person of any adverse interest to the Sri Lankan authorities or to anyone else. Nor does the Tribunal find that the applicant or any other family member suffered harassment or persecution from the army, CID, any paramilitary group or any other group or individual or that he will suffer such harassment or persecution in Sri Lanka in the reasonably foreseeable future. [361] The Tribunal has considered the applicant's claims that he will suffer persecution because of his race as a Tamil or Sri Lankan Tamil. There is sufficient information to indicate that at least up to the end of the civil war in May 2009, Sri Lankan citizens who were Tamils faced an appreciable risk of persecutory harm at the hands of the authorities because of their Tamil race, particularly those in the north and east of the country. However, by the time of this decision in June 2016, the security situation has stabilised, and while many problems remain in the country, the sources indicate that Tamils are not being persecuted just because of their race. This also leads the Tribunal to reject the applicant's claim he will be persecuted everywhere in Sri Lanka, because he is Tamil. [362] The most recent UNHCR Guidelines, released December 2012, do not identify Tamils or Sri Lankan Tamils as one of the risk profiles in need of protection. However, the UNHCR Guidelines also indicate that each case needs to be dealt with on its merits. In this case, however the Tribunal is not satisfied there is a real chance of serious harm on the basis of his race. The Tribunal does not accept that he has suffered serious harm from the authorities, their paramilitary groups or any other group or individual in the past and on the available evidence, the Tribunal does not accept that there is a real chance that he will suffer serious harm in the reasonably foreseeable future. [363] Under s.91R(1)(b) of the Act, a non-exhaustive list of the type and level of harm that will meet the serious harm test is provided. The Tribunal is not satisfied that the claims of persecution for reasons of his ethnicity or race referred to by the applicant meet the serious harm test as set out in the non-exhaustive list in s.91R(2). The Tribunal is not satisfied therefore that the applicant will face a real chance of serious harm for reasons of his ethnicity or race were he to return to Sri Lanka. [364] The Tribunal has considered the applicant's claim that he will be persecuted because he is a failed returnee asylum seeker, a failed returnee asylum seeker from a Western country/Australia and will be imprisoned, tortured or killed on return. It also considered the proposition that Tamils residing in a Western country and who returned to Sri Lanka will attract hatred and revenge from the Singhalese; and that as a result of returning, he will be perceived as a supporter of LTTE and/or imputed with a political opinion in opposition to the government. The Tribunal has considered the applicant's claim that he has previously come to the attention of the authorities and this will exacerbate the risk of harm which he faces. [365] In relation to returnees, the human rights organisations Freedom from Torture, Amnesty International and Human Rights Watch have documented cases where returnees with an actual or perceived link to the LTTE have been tortured and detained and also that this is reported of some who have been political activists or human rights workers. For example the Human Rights Watch Report of February 2013 refers to rape and other forms of sexual violence being used against suspected members or supporters of the LTTE. The Director of Human Rights Watch is quoted as saying that every Tamil man or woman arrested for suspected LTTE involvement is at risk. Human Rights Watch and the other reports do not suggest that all Tamils are at risk. Freedom from Torture in their report document 24 cases of Tamil returnees from the UK with a real or perceived LTTE connection. While some news reports and actions of the Sri Lankan authorities indicate that the authorities are interested in returnees as possible LTTE supporters, the Tribunal finds the evidence does not indicate that they are taking action against every returnee as an LTTE supporter.

THE FEDERAL CIRCUIT COURT'S DECISION 10 The judicial review application made to the Federal Circuit Court was listed for a hearing on 13 February 2018. On 30 January 2018, written submissions were filed by the lawyers then representing the appellant: J[11]. Those submissions contained one ground of review which the primary judge set out in full at J[12]: Ground 4 The Tribunal committed jurisdictional error by making a finding that was irrational and illogical, one that no reasonable decision maker would make. PARTICULARS a. The Tribunal erred in rejecting a core claim advanced by the applicant by placing undue weight on his entry interview. b. In his statement of claims, noted in the Tribunal's decision at [49], the applicant claimed that he obtained the clearance from his sister's friend. c. During the delegate's interview, at [74], the applicant claimed that he obtained clearance to travel between Jaffna and Colombo from a member of the EPDP. d. During the second hearing before the RRT on 23 September 2013, the applicant claimed that, although he was not a member of the EPDP, he was helped by a friend of his sister who was a member of the EPDP. e. The Tribunal rejected the applicant's claim at [346], stating that it did not accept as plausible that the applicant "would have failed to mention this earlier in the entry interview or his statement of claims". f. In making the finding above, the Tribunal placed undue weight on the applicant's entry interview. g. The Tribunal in making credibility findings adverse to the applicant approached the task in an unduly particularised manner and allowed allegedly unfavourable omissions and inconsistencies, such as the one particularised above, to sequentially influence other factual findings. h. The failure to mention the connection with the EPDP in the initial interview was pivotal to the unfavourable credibility findings against the applicant. Although many alleged inconsistencies and omissions are mentioned in the case, the EPDP factor was pivotal. The intensive and overly rigorous approach of the Tribunal failed to take into account the numerous times the applicant was asked to state his claims (including an original RRT hearing, first AAT hearing and a second AAT hearing). The methodology and the findings of the decision under review offend the accepted principles. 11 At the conclusion of the hearing on 13 February 2018, the primary judge made orders which included that: (1) the applicant file and serve within 7 days an amended application giving full particulars of the grounds raised in his outline of submissions filed on 30 January 2018; (2) the applicant file and serve within 7 days each country report relied upon in support of the ground in the amended application; (3) the first respondent file and serve within 21 days written submissions in respect of that part of the amended application not dealing with the Tribunal's finding of credit in respect of the applicant, such submissions are also to indicate any objections to the country reports relied upon by the applicant; (4) the applicant file and serve within 28 days any written submissions in response to the first respondent's further written submissions; (5) the costs of the amendment are reserved; (6) the matter be determined on the papers without a further hearing except with respect to the question of costs. 12 On 20 February 2018, the appellant filed a further amended application in accordance with order 1 referred to above. However, only the first ground reflected what was raised in the January submissions: J[15]. Grounds 2 and 3 had not been raised and leave was not granted to raise them. 13 The primary judge concluded that, as no reference had been made in the further amended application to the particulars advanced in written submissions which attacked the credibility findings made by the Tribunal, that part of the ground of review had been abandoned. Nevertheless, the primary judge went on to explain that, if it had been pressed, he would have rejected it: J[17]. His Honour explained why at J[17]: Even if that part of the ground had not been abandoned, I would have rejected it. It relies on the contention that reliance by the Tribunal on what is and is not said by an applicant at an interview shortly after arriving in Australia is legally unreasonable in light of the decision of the Full Court of the Federal Court in MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 at [56]. That decision is not authority for such a broadly stated proposition. Unreasonableness is to be judged by reference to all of the circumstances. Here, the Tribunal did have regard to the applicant's failure to make a particular claim at his entry interview, but it had regard to the Court's comments in MZZJO and also relied on the applicant's failure to make the claim in his statement prepared for the purpose of his visa application. There was no unreasonableness as alleged. 14 His Honour set out the first ground in the further amended application, which "roughly equated" with the second part of the single ground raised in the January submissions. His Honour noted that the complaint focussed on T[365] of the Tribunal's reasons and, in particular, the statement that "Human Rights Watch and the other reports do not suggest that all Tamils are at risk": J[18]. The applicant had identified this finding as a necessary step in the Tribunal's conclusion that the applicant did not face a real chance of serious harm on return to Sri Lanka. The primary judge set out in full the particulars or propositions advanced in the further amended application said to support the conclusion that the Tribunal's finding was not reasonably open on the material. They were (without alteration or correction for errors and with footnotes omitted): (a) the UNHCR identifies persons suspected of certain links with the LTTE as being a category of persons at elevated risk of harm. Real or perceived links "go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case". (b) the UNHCR conclude further that "there is an ethnic element to persecution: Within each of the risk profiles described, there is an ethnic dimension to their vulnerability." ... and... "...generally members of the minority Tamil ... are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances ... In addition to a person's ethnicity, the place of origin may also be a relevant assessment in the assessment of risk. " (c) The US State Department on Human Rights Practices in Sri Lanka for 2013 states, "Discrimination against persons with disabilities and against the ethnic Tamil minority continued, and a disproportionate number of the victims of human rights violations were Tamils." ... (d) the UK Upper Tribunal 2013 (UK Tribunal) stated that among the categories of persons at real risk of persecution or serious harm on returning to Sri Lanka are those individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka because they are, or are perceived to have, a significant role in relation to post conflict Tamil separatism. The UK Tribunal states further that, "If a person is detained by Sri Lankan security services there remains a real risk of ill treatment or harm requiring international protection". (e) The DFAT 2014 report states, inter alia, that: (i) while the Sri Lankan Constitution provides that no citizen shall be discriminated against on grounds of among other grounds race, place of birth or any other ground: " ... ethnicity is highly politicised in Sri Lanka ... " (ii) "there were likely instances of discrimination in the application of [the Emergency Laws] with LTTE support at times imputed on the basis of ethnicity. " (f) The Tribunal further referred to the Amnesty International 2012 Annual Report 2012 (Amnesty Report) which alleges that "the ill treatment of people detained on suspicion of being LTTE sympathisers remains widespread ... ". Further, the Tribunal notes in the same paragraph from the Freedom House that: "there has been no decline in the in the use of torture against LTTE suspects over the last two years" and "In addition there has been a sharp increase in the "kidnapping of Tamils"". (g) The DFAT 2015 report found, in concluding why more Tamil's were detained under Emergency Regulations than any other ethnic group, was due to: "likely instances of discrimination in the application of these laws with LTTE support at times imputed on the basis of ethnicity." (h) The Canadian Board found, in discussing the "screening" of possible LITE supporters by the authorities, that, inter alia, "Tamils throughout the country, particularly young Tamil men in the north or east, are being arrested and detained on suspicion of LTTE affiliation, a practice [described] as akin to ethnic or racial profiling. " (i) At CB page 653, paragraph 365, the Tribunal refers to the Human Rights Watch Report (HRW Report) of February 2013. (i) The Tribunal note's HRW's Director's comments that Every Tamil man or woman arrested for suspected LTTE involvement is at risk."; (ii) The Tribunal concludes that this statement "and the other reports" do not suggest that all Tamils are at risk (see paragraph 365); (iii) The HRW Report further states, at page 36, that in the immediate aftermath of the conflict in 2009, "LTTE members and civilians who had been under LTTE control were processed at screening sites and camps for internally displaced persons (IDPs)." (iv) The Tribunal erroneously concludes that the HRW Report does not suggest all Tamils are at risk and alleges the HRW Report's findings are limited to those Tamils with suspected LTTE involvement. The reference to 'Civilians' above is a distinct reference to others who are not LTTE members. 15 At J[19], the primary judge referred to the applicant's further written submissions which had been filed on 12 March 2018. The applicant had submitted that the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012 is to the effect that "irrespective of prior residency, Tamils are perceived generally with having LTTE association". He also submitted that, contrary to the Tribunal's conclusion, the report did not conclude that only those with a perceived link to the LTTE are at risk but, rather, that Tamils are discriminated against irrespective of any real or perceived link to the LTTE. The applicant submitted it was unreasonable for the Tribunal to conclude that the applicant would not be discriminated against as a Tamil: J[20]. 16 At J [22], the primary judge rejected that ground. First, his Honour noted that the applicant was incorrect in submitting that the Tribunal had found that the applicant would not be discriminated against. Rather the critical finding was that there was not a real chance that the applicant would face serious harm in the reasonably foreseeable future for a number of reasons, including his Tamil ethnicity: J[23]. His Honour referred to T[361] and T[359] of the Tribunal decision, set out above. 17 Secondly, the primary judge noted that the Tribunal was not addressing what might have happened to the applicant immediately after the war or at some other time in the past; rather, it was assessing what might happen in the future: J[24]. His Honour concluded that, whilst there was material before the Tribunal which related to the period shortly after the end of the civil war in 2009, the Tribunal "was correct to consider more recent information as more accurately addressing the question it had to decide". 18 His Honour's third reason for rejecting the ground was that it was open to the Tribunal for it to conclude on the material before it that not all Tamils were at risk of persecution: J[25]. His Honour carefully considered the material and the submissions which had been made to him stating: [25] Thirdly, in any event, it was open to the Tribunal to conclude from the material before it that not all Tamils were at risk of persecution. The UNHCR Guidelines relied on by the Tribunal (see [406]) stated that the following groups may still be at risk in Sri Lanka: … (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims or human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances. [26] Clearly enough, only the first of these groups could have applied to the applicant. It is also plain that the Tribunal was correct to identify, at [362], that the Guidelines "do not identify Tamils or Sri Lankan Tamils as one of the risk profiles in need of protection". [27] The UNHCR Guidelines considered by the Tribunal (at [409]) also addressed the first of the risk profiles referred to above. I have inserted numbers in the paragraph so that later reference to the findings is more easily understood: 409. ... [1] persons suspected of certain links with the LTTE may be and in some cases are likely to be in need of international [protection]. ... [2] originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the Refugees Convention. [3] However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continues to expose individuals to treatment which may give rise to a need for international protection, depending on the specifics of the individual case. [4] The nature of these more elaborate links to the LTTE can vary, ... can include former LTTE cadres, members, supporters (supplying goods or transport, shelter etc) and persons with family or other close links to the LTTE . ... [5] Within each of the risk profiles described, there is an ethnic dimension to their vulnerability. … (Emphasis added) [28] Contrary to the applicant's submission, these Guidelines do not state that Tamils are generally perceived as having LTTE association irrespective of their prior residency. To the contrary, as finding [2] and [3] at [27] above show, the Guidelines suggest that prior residency in an area formerly controlled by the LTTE does not, by itself, result in the need for protection. [29] The information from the UK Tribunal addressed the circumstances of people who are detained by security services. As such, it did nothing to undermine the Tribunal's assessment of the applicant's situation because the risk of harm, including detention and subsequent mistreatment, on the Tribunal's findings, arose from actual or perceived connections to the LTTE and the Tribunal found that the applicant had neither type of connection. [30] The extracts from the DFAT reports of 2014 and 2015 relied on by the applicant dealt with discrimination in the application of the Emergency laws; however, the 2015 report (which was not extracted in the Court book, but which was before the Court) reveals that this information referred to the period of the civil war: see [3.10]. That was not necessarily relevant to the Tribunal's decision. As I have observed at [24], the Tribunal accepted that there was an appreciable risk of harm during the war, but that the security situation had stabilised: [361]. [31] The extracts from the Amnesty International report relied on by the applicant concerns people suspected of LTTE links and so was not relevant to the applicant. [32] The Canadian Board report relied on by the applicant, again concerned the treatment of people suspected of LTTE links. [33] The HRW report related to the plight of people arrested for suspicion of LTTE involvement, and those who, in the immediate aftermath of the civil war, were processed at screening camps because they had lived in areas that had been controlled by the LTTE. The first aspect did not relate to the applicant and the second concerned a different time. [34] In summary, nothing in the material relied on by the applicant supports his argument. Given the direct relevance of the UNHCR Guidelines, and the nature of the other material, it was open to the Tribunal to conclude, first, that the applicant would not be perceived to have any links to the LTTE and, secondly, that he was not at real risk of persecution simply by reason of his ethnicity.

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