CAY16 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be dismissed with costs as taxed, assessed or agreed.
2. The name of the First Respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This appeal concerns the application of the principle established by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 ('S395'). In that case, the former Refugee Review Tribunal had accepted that it was not possible for the protection visa applicants to live openly as homosexuals in Bangladesh. It went on to find that because they had previously conducted themselves discretely in Bangladesh, there was no reason to suppose that they would not do so if returned to Bangladesh. A majority of the Court concluded that this involved error. The error was that the Tribunal had failed to ask itself why the couple had previously conducted themselves discretely and was therefore diverted from addressing the correct question which was whether the couple had a well-founded fear of persecution: [43] per McHugh and Kirby JJ and [88] per Gummow and Hayne JJ. 2 The principle was more recently distilled by Gageler J in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [36] in these terms: The principle for which [S395] stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. 3 This statement was itself in turn endorsed by a majority of the High Court in DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [8]. 4 The question which arises is how that principle is to be applied to a particular finding of the Immigration Assessment Authority ('the Authority'). Its overall conclusion was that an earlier decision of a delegate to refuse to issue the Appellant with a protection visa should be affirmed. In his application for the protection visa, the Appellant claimed that he had a well-founded fear of persecution were he to be repatriated to Sri Lanka on three Convention bases. Only two of these are relevant to this appeal. The first of these was that he held a particular political opinion and the second was his membership of a particular social group, namely, young men targeted by a political party known as the Tamil Makkal Viduthalai Pulikal ('the TMVP'). These two grounds were set out by the Authority at [1] of its reasons. 5 The Authority considered these two grounds together under the heading 'TMVP harassment, support for the TNA' at [15]-[32]. The TNA is a political party known as the Tamil National Alliance. As I will explain shortly, the Authority accepted that the Appellant did some work for the TNA. The Appellant's claim was that he was harassed by the TMVP because of the work he did for the TNA. The Appellant relied on three different events of mistreatment involving the TMVP in 2009, 2011 and 2012. The Authority discounted the 2009 event to a level which made it trivial and concluded that the 2011 event was a product of the TMVP's criminal activities, rather than the Appellant's support of the TNA. 6 It did however accept some aspects of the Appellant's case in relation to the 2012 event. In particular, it accepted that he had been politically involved with the TNA to the extent of organising two meetings in his village in the context of the 2012 provincial elections in Batticaloa District (at [31] and [50]). It also accepted that following one of these meetings he had been kicked and threatened by 5 or 6 men associated with the TMVP. It concluded that the most plausible explanation for this harassment was that it was a 'result of the TMVP's attempt to disrupt meetings of its political rivals' (at [31]) and that 'On the [Appellant's] evidence they knew he was helping the TNA by organising the meeting to support a local TNA candidate'. It is apparent from the context of [31], including the detailed rejection of some aspects of the Appellant's evidence, that, in this case, the Authority was accepting this evidence. 7 The Authority examined the significance of these findings at [50] and [52]. Its reasoning had two elements. First, it thought that the political situation in the Batticaloa District had significantly changed in 2015 with provincial and presidential elections in that year resulting in the influence of the TMVP waning and that of the TNA growing: at [50]. Secondly, it assessed the possibility that the Appellant might be involved in future clashes with the TMVP as speculative. 8 It is this second finding which provides the field of debate for this appeal. The finding at [52] was in these terms: It is not impossible that the [Appellant], if he resumes working with the TNA, might become involved in clashes during future election campaigns. However, this assumes the [Appellant] would still support the TNA if he returns to Sri Lanka and, if so, that he might be involved in future clashes with the TMVP during an election campaign. This possibility will depend on the [Appellant's] level of involvement and the overall electoral environment at the time. The possibility of such an eventuality is speculative. On the basis of the evidence before me, including the information relating to the changes in the political situation since the [Appellant's] departure from Sri Lanka, I am not satisfied that the [Appellant] will face a real chance of harm from the TMVP on return to Sri Lanka on the basis of either his Tamil ethnicity or his political opinion. 9 By the end of the hearing it had emerged that the main issue between the parties concerned the meaning of the first sentence of [52]. Mr Chia, for the Appellant, submitted that the first sentence contained a finding that the Appellant might be involved in clashes during future election campaigns. Mr Swan, for the Minister, submitted that it was apparent from the balance of the paragraph that the Authority had not made any findings about what would happen in the future. He placed emphasis on the Authority's statement in the sixth line that the possibility of 'such an eventuality' was 'speculative'. Here the suggestion was that the 'eventuality' was the prospect that the Appellant might become involved in clashes during election campaigns. Taking these matters together, Mr Swan's submission was that the statement in the first sentence ought not to be taken as a finding of fact. 10 I prefer the Minister's submission. Viewed in isolation, the first sentence does appear to involve a finding that the Appellant might be involved in clashes during future election campaigns. But the next sentence begins with the word 'However' to indicate that some doubt is now to be thrown on what has gone before. The doubt is that the idea that the Appellant might be involved in clashes during future elections rested on an assumption about his continuing support for the TNA and the likelihood of future clashes (itself a function, as it had explained in [50], of the variable political temperature in Sri Lanka). The uncertainty which therefore existed within the necessary assumption identified in the second sentence then formed the subject matter of the third sentence. Here the Authority identified that that uncertainty was itself beset with a further uncertainty being that, even if the Appellant's continuing support for the TNA was a given, one would still not know what his level of participation within the TNA would be. These cascading uncertainties then fed into the fourth sentence where the Authority expressed itself unable to form a view on whether clashes would occur because to do so would be speculative. 11 Taken as a whole, I therefore do not read the first sentence of [52] as involving a finding that the Appellant might be involved in clashes during future election campaigns. As such, I do not think that an occasion arose for the Authority to consider whether this eventuality could or would be avoided by the Appellant curbing his political activities. Accordingly, the reasoning in S395 does not apply to this case. 12 This conclusion may be put another way by paraphrasing the Authority's reasoning in this case and replacing the Appellant's support for the TNA with the homosexuality of the couple in S395 in the above passage. Doing so reveals this path of reasoning: (a) It was possible that if the couple decided to continue their homosexual lifestyle on return to Bangladesh (cf. 'if he resumes working with the TNA') they might be persecuted (cf. he 'might become involved in clashes during future election campaigns'); (b) This would only occur on the assumption that: (i) the couple would continue their homosexual lifestyle on return to Bangladesh (cf. 'this assumes the [Appellant] would still support the TNA if he returns to Sri Lanka'); and (ii) the couple would find themselves in circumstances where they might be persecuted (cf. 'this assumes…he might be involved in future clashes with the TMVP during an election campaign'); (c) Whether these assumptions are correct would depend on the extent to which the couple pursued their homosexual lifestyle and the overall environment of homophobia in Bangladesh (cf. 'This possibility will depend on the [Appellant's] level of involvement and the overall electoral environment at the time'); (d) An assessment of whether the couple would pursue their homosexual lifestyle on return to Bangladesh and the overall environment of homophobia in Bangladesh would be speculative (cf. 'The possibility of such an eventuality is speculative'); and (e) On the evidence before the Tribunal, it is not satisfied that the couple will face a real chance of persecution on the basis of their sexuality (cf. 'I am not satisfied that the [Appellant] will face a real chance of harm from the TMVP'). 13 (The expression 'homosexual lifestyle' is the High Court's, not mine.) Steps (b), (c) and (d) show that this case is not on all fours with S395. The Authority did not find that the Appellant could or would curb his activities with the TNA to avoid the adverse consequences of attention from the TMVP. Rather, it did not make any findings about what the Appellant's future conduct in relation to the affairs of the TNA might be. 14 It is possible to conceive that its refusal to make such a finding could be challenged. For example, it is not at once self-evident why the Authority was not able to make a finding about whether the Appellant would continue to be involved in the affairs of the TNA. It was, after all, his involvement in the TNA which formed one of the explicit bases for his claims for protection. Further, the Authority accepted that he had been involved in the affairs of the TNA in 2012. One view might be that by refusing to speculate the Authority had failed to assess the Appellant's claims for protection. 15 The Appellant did not pursue such a case in this Court and, as Mr Swan pointed out, the Appellant's statutory declaration in support of his application did not include any detail about what his future intentions in relation to the TNA were. Since the matter does not arise for consideration, it is not appropriate to consider it further. 16 The Appellant submitted that error was disclosed at [68] of the trial judge's reasons. At that paragraph her Honour concluded that there was 'no evidence or suggestion that the actions of the TMVP had caused the [Appellant] to modify his past conduct'. The Appellant pointed out that his evidence about the 2011 incident had included evidence that he had gone into hiding at his sister's and cousin's houses for three months. The Authority noted this evidence at [29] but downplayed its significance by observing that the Appellant also gave evidence that after four months the Appellant's uncle considered it was safe for the Appellant because the TMVP had not come looking for him with the consequence that he then commenced working in the uncle's shop. That observation does not, of course, meet the Appellant's current point that this evidence showed that he modified his conduct because of concerns about TMVP harassment. 17 Even so, I do not think that this matters because of the Authority's finding, to which I have referred, that the events in 2011 were not politically related but were rather to be seen as manifestations of the TMVP's efforts to extort the local inhabitants into supporting it. It was on this basis that the Authority concluded that these events could not give rise to a well-founded fear of persecution on the basis of political opinion (that is, the second basis on which he claimed to have a well-founded fear of persecution). Put another way, the Appellant was not being harassed because of his involvement with the TNA; he was being harassed as part of a criminal venture targeting local inhabitants. 18 For completeness, the Appellant does not argue before this Court that the Authority had failed to consider the 2011 event as supporting his third claim that he was a member of a particular social group consisting of young men targeted by the TMVP. In any event, it seems likely that that this case was rejected in the last line of [52]: 'I am not satisfied that the [Appellant] will face a real chance of harm from the TMVP on return to Sri Lanka on the basis of either his Tamil ethnicity or his political opinion'. The only claim the Appellant made in relation to his Tamil ethnicity was that he would be targeted as a young Tamil male by the TMVP. That claim was mentioned by the Authority at [1] and, despite not being expressed precisely, it seems to me that the last sentence of [52] is referring to it. For completeness, the reason it reached that conclusion was because of the more benign current political situation in Sri Lanka including a decreased role for the TMVP: see [48]-[50]. 19 Finally, the Appellant took issue with the trial judge's conclusion at [69] that the reasoning of Gummow and Hayne JJ in S395 at [82] could be distinguished because this was not a case where the Authority imposed a requirement that amounted to a statement of what the Appellant was expected to do. The Appellant now says that this was not his submission and that he was relying upon what was said by McHugh and Kirby JJ at [43]. I have already explained why I do not accept that S395 applies to this case. In that circumstance, it does not appear to matter whether the trial judge made this error or not. 20 Therefore, the appeal should be dismissed with costs as taxed, assessed or agreed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.