The decision of the Authority
5 The following is taken from the summary provided by the respondent in his written submissions, it being accepted by the appellant as an accurate summary.
6 The Authority accepted that the appellant is a Sri Lankan national of Tamil ethnicity and Hindu faith. It accepted that the appellant is a practising Hindu, and that he and his father faced opposition in relation to building the temple. It accepted as plausible that the appellant's father was beaten on one occasion, and found that a small Hindu temple was completed in the appellant's area by 2010.
7 Hindu religion, temple activities and threats from thugs: After recounting the appellant's evidence given in the SHEV application and at the entry and delegate interviews, the Authority noted that it had significant concerns about the appellant's credibility and reasons he claims to fear harm if returned to Sri Lanka. While accepting that the appellant may have been stopped by two people in 2011 when he and a friend were on their way to or from the temple, it did not accept that he was threatened against involvement in temple activities by two thugs, it did not consider it credible that the appellant would not take such threats seriously and would not mention them in his arrival interview, and did not accept that he feared any harm as a result of the incident. The Authority also doubted that the June 2012 incident (as extracted above at [4]) occurred as the appellant stated in his SHEV application, but instead, accepted his account given at the SHEV interview. That is, that there was an incident in 2012 in which the appellant was slapped, but the Authority did not accept that any threat was made or that he was afraid for his life as a result. As the Authority did not accept that the appellant was threatened, it followed that it did not accept that he and his father went to the police the next day and that the police did not take action, nor that he received death threats on the phone. The Authority also did not accept that Sinhala men came looking for him after he left Sri Lanka.
8 Father's association with United National Party (UNP): The Authority accepted that the appellant's father is a supporter of the UNP, but found that the appellant does not have any particular interest in politics, and is not a supporter of the UNP. Having not accepted that the appellant was threatened in an incident in 2012, it did not accept that his father attempted to use his influence to contact the UNP Member of Parliament.
9 Tamil ethnicity/ Liberation Tigers of Tamil Eelam (LTTE) connections: The Authority accepted that, during the civil war, the appellant's uncle was accused of involvement with the LTTE and that he was beaten and imprisoned before ultimately leaving Sri Lanka. It also accepted that, as a result of the presumed family connection, the appellant's father was questioned by the Criminal Investigations Department (CID) several times about the uncle when the appellant was a small boy, and it accepted as plausible that the questioning occurred during the period the temple was being built. However, given the appellant's youth at the time that his uncle was imprisoned, the long time period since then, and that he has not been questioned by the authorities in relation to the issue, the Authority found that the appellant does not have a profile with the Sri Lankan authorities as an LTTE supporter because of an imputed family connection. The Authority also found that the appellant does not have any profile with the authorities as an imputed LTTE supporter as a result of delivering aid to an LTTE area in 2004. The Authority also noted the appellant's claim to fear harm generally on the basis of his Tamil ethnicity, and found that while he had referred to instances of harassment and discrimination against Tamils by ethnic Sinhalese, he had not provided specific evidence of discrimination on this basis.
10 Illegal Tamil departee with suspected LTTE profile: The Authority accepted that the appellant departed Sri Lanka illegally, and that as a result he would be exposed to action by the authorities under the Immigrants and Emigrants Act (I&E Act). It also accepted that the appellant fears being returned to Sri Lanka and identified both as a failed Tamil asylum seeker and as an illegal departee.
11 Having regard to the above factual findings, the Authority found that:
(1) there was not a real chance that the appellant would face harm on return to Sri Lanka because of an imputed link to the LTTE as a result of his family connection to his uncle;
(2) while there was a real chance that the appellant may be subjected to some level of discrimination on return on the basis of his Tamil ethnicity or family connections, it was not satisfied that such discrimination would amount to serious harm;
(3) the appellant did not face a real chance of harm from R and T because of his involvement in the building of a Hindu temple in his local area, nor from members of a criminal underworld;
(4) the appellant would not face a real chance of harm on the basis of his Hindu religion;
(5) there was not a real chance that the appellant would face harm on the basis of his father's support for the UNP; and
(6) the appellant would not face a real chance of harm for reasons of being a failed asylum seeker from a Western country, including due to his Tamil ethnicity. The Authority found on the evidence, that while it was likely that the appellant would be charged under the I&E Act and fined (or, if he plead not guilty, he would be bailed on a personal surety), the Authority did not consider that this amounted to serious harm. Further, in the unlikely event that the appellant was subject to a custodial sentence, the Authority found that the potential for the appellant to have a brief period of detention did not give rise to a real chance of serious harm on the basis of his illegal departure.
12 The Authority therefore concluded that the appellant did not satisfy the requirements of the definition of refugee in subsection 5H(1), and therefore that he did not meet the criterion for a protection visa as specified under paragraph 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act).
13 With respect to complementary protection, the Authority was not satisfied that the appellant would face a real risk of significant harm for the purpose of paragraph 36(2)(aa) of the Migration Act, from persons associated with the criminal underworld, as a result of his involvement in building the Hindu temple, as a result of his father's membership of the UNP, on the basis of his religion, on the basis of his Tamil ethnicity or suspected LTTE profile, or due to his treatment as an illegal departee (including as a result of any brief detention, questioning or imposition of a fine on re-entry to Sri Lanka).
Federal Circuit Court
14 By application filed in the Federal Circuit Court the appellant sought judicial review of the Authority's decision. In that application, the appellant raised two grounds of appeal, namely (1) that the Authority failed to consider an integer of the Appellant's claim, that he feared harm if he were to return to Sri Lanka because he was a member of a particular social group referred to as the Temple group (the Temple Group Claim), and (2) that the Authority adopted the wrong construction of s 473DD of the Migration Act in relation to considering new information.
15 It is only the first ground which is being pursued in this Court. In relation to that ground of appeal, as the Court below observed, it was necessary to identify the evidence the appellant presented to the Authority in order to consider if it failed to have regard to the Temple Group Claim.
16 The Court below identified the evidence relied on by the appellant to establish the Temple Group Claim. The appellant accepts that summary as accurate.
17 Given the ground of appeal in this Court it is appropriate to recite his Honour's summary of that evidence (at [21]-[27], references omitted):
One, in an interview conducted on the applicant's arrival he was asked:
Are you a member of any particular social or religious group?
The applicant answered "yes". In response to a request for details he stated: "Temple group".
Two, in a Statutory Declaration which accompanied his visa application, he stated in reply to a question: "Why I left Sri Lanka":
The Sinhala Buddhists have for many years caused problems for the Hindus all of whom are Tamils as the Buddhists believe the whole of Sri Lanka belongs to them as it is a Buddhist country.
Three, in the same document the applicant submitted he introduced the "issue of the temple":
With much resistance from the Sinhalese most of whom were Buddhists my father and Babu were finally able to complete construction of the Hindu temple (Singamma Kaali Kovil). During the period 2008 - 2010 while the temple was being constructed my father received several death threats from unknown Sinhala men who called my father on his mobile. One occasion my father was beaten by [R] and [T] who were two influential and well-connected Sinhala thugs in the area I lived. [R] and [T] have committed several crimes in the area and are staunch supporters of the ruling police party (PA - Public Alliance; also known as "Podu Peramuna") and are backed by the PA minister of parliament, Sarath Gunaratne.
Four, subsequently in the same Declaration he indicated that his father was a leader of the temple, and the applicant was appointed president of the Temple's youth club. The applicant recounted an incident in 2011 when he was threatened by R and T, but he continued to engage in youth club activities. I note that the reason the applicant gave for this was that he said he "did not take the threats made by [R] he (sic) and [T] as serious".
Five, in the same Statutory Declaration he also stated:
What I fear may happen to me if I return to that country and why
I believe that I am at risk of being harmed and killed possibly by [R], [T] and their supporters.
I also fear the Sinhalese in my area as I am a devout Hindu actively involved in Hindu religious activities.
...
Who I think may harm/mistreat me in that country and why
[R], [T], their supporters and Sinhalese in my area as I'm a devout and active Hindu involved in temple activities.
Six, in another statement he stated:
The committee decided to build a temple in our area on the road called Finance Watte. The Sinhalese people in the area did not like the idea of building a temple there. The committee gathered in our house very often to work out a plan to build the temple. The committee decided to build a temple in a vacant plot of land where Hindu people gathered and prayed by lighting a lamp. The vacant land belonged to the priest. His name Babu.
The delegate (who first considered the applicant's claims for the visa) recorded:
The applicant during his Entry Interview (EI) on 16 January 2013 made the following statement in response to "Why did you leave your country of nationality (country of residence)":
When the tsunami happened we had delivered supplies to people of Mullaitivu, an LTTE area. They now suspect I am LTTE. I am being harassed by the CID and Sinhalese in my area. I didn't have once day of peace and am afraid for my life. So I left.
18 The primary judge acknowledged that the appellant's submission was that his claim as to fear of harm came from a number of sources and was not limited to the 2011 incident (involving R and T) and the 2012 incident (both extracted above at [4]). The appellant argued that while the Authority dealt with the 2011 and 2012 incidents, it did not address his claimed fear from Sinhalese generally in the area by reason of him being a member of the Temple group.
19 The primary judge noted that the Authority rejected the appellant's argument, that he had not been denied an opportunity to explain in more detail his fears in relation to his activities in relation to the Temple.
20 His Honour referred to the authorities relied on by the appellant below, which are those also relied on in this Court. As he observed, the parties agreed the Authority would have fallen into legal error if it did not consider a claim expressly raised or one clearly arising from the circumstances presented (at [35]).
21 The primary judge rejected the appellant's argument as to the basis on which the claim was made below.
22 He concluded that the Temple Group Claim, properly understood, involved two elements; first, that the appellant feared harm specifically from R and T and their supporters (thugs and criminals) because of his Hindu activities, and second, that he feared harm more generally from Sinhalese people in his area because he was Hindu and was active in the Temple (at [59]).
23 Having identified the appellant's claims before the Authority, the primary judge then considered the reasons of the Authority to determine if each claim had been addressed.
24 His Honour summarised the findings made by the Authority in relation to the 2011 and 2012 incidents before concluding that (at [56]):
Under the heading of "Fear of harm as a Hindu and from thugs/criminal underworld", the IAA specifically considered the applicant's claim that he feared harm from R and T because of his involvement in the Hindu Temple in his local area. That is sufficient to deal with that aspect of the complaint in ground one.
25 As the appellant accepts, the reference in that passage to "that aspect" relates that reasoning to the first part of the claim identified above at [22]. I note that at the hearing of the appeal the appellant abandoned a submission made in writing that this conclusion was erroneous as it disposed of both claims. There is no issue on the appeal that the first claim was considered.
26 His Honour then proceeded to address whether the Authority had considered the second, more general part of claim as follows (at [58]-[61], references omitted):
The IAA also considered the applicant's claim, as made originally in his entry interview, that he had, and would fear for the future, threats from Sinhalese people.
There appeared to be two elements to the applicant's claim in this regard. One, fear from thugs (including, and beyond, R and T) with whom R and T were associated and were part of some criminal element. Second, a far more general fear of harm from Sinhalese people because he was a Hindu and active in the Temple.
The IAA considered, and rejected, that these fears were well-founded. In relation to the generalised fear, the IAA found that it did not accept that the 2012 incident occurred, as the applicant had claimed, or that "unknown armed men were looking for him".
In his submissions to the IAA, the applicant complained that he had not had the opportunity to explain how these threats, generally from Sinhalese people, related to his activities with the Temple. The IAA found that, on the material before it, he had been given "a number of opportunities to expand on his claims and evidence" about "his involvement with the temple and about his fears because of these threats from Sinhalese people".
27 The Court then concluded (at [62]-[63], references omitted):
Further, the IAA specifically considered the claim to fear harm from criminals because of his Hindu activities, and on the basis of his Hindu religion generally, from Sinhalese.
In short, the applicant's claims were that he feared harm because of his Hindu activism and his activities in the Hindu Temple. This fear of harm was said to emanate from R and T, and a broader group of criminal thugs, and Sinhalese generally. The IAA considered all of the applicant's claims as they clearly arose on what was before it.
28 The primary judge concluded that, properly read, the reasons of the Authority reflect that it considered both the fear of harm said to emanate from R and T (and a broader group of criminal thugs) as well as threats generally from Sinhalese people (at [52]-[63]). He observed that the applicant had not satisfactorily addressed that the Authority had found that his claims to fear harm were either rejected at the factual level, or were otherwise not well-founded (at [65]). His Honour ultimately concluded (at [68]) that:
In the current case, there is no jurisdictional error in the IAA's consideration and findings as to whether the applicant held a well-founded fear. The IAA's findings at the factual level were all reasonably open to it, and for the reasons it gave, and which were probative of what was before it. Simply, there was no need in the current circumstances for the IAA to go on to consider whether any social group, let alone a particular social group, existed. In all, ground one is not made out.