CDW18 v Minister for Home Affairs

BACKGROUND 9 The appellant's claims were summarised by the Minister in the following way: The appellant, who comes from northern Sri Lanka and identifies as a Catholic Tamil, claimed to fear harm based on an imputed association with the Liberation Tigers of Tamil Ealam (LTTE) and his Tamil ethnicity. The bases of those claimed fears were the adverse attention of the Sri Lankan authorities due to relatives' involvement with the LTTE, the similarity of the appellant's last name to the last name of an LTTE leader, questioning of the appellant by the authorities and the danger to Tamils generally in Sri Lanka … 10 It was not contended that this summary was inaccurate, and having reviewed the appellant's claims as recorded in the decisions of the Minister and the Authority (set out below), it is apparent that this summary is accurate and sufficient for present purposes. 11 The Authority's decision was summarised by the Minister in the following way (footnotes omitted): The IAA's reasons are [relevantly] set out at [15]-[32] of the Decision. [The appellant does not challenge the IAA's findings on new information or on complementary protection.] The IAA accepted that the appellant's cousin was a member of the LTTE who died in combat, his brother-in-law was also a member of the LTTE who left Sri Lanka in 2005 and his uncle assisted the LTTE. Relevantly, the IAA then made the following findings: (a) the appellant provided vague answers to the Delegate when questioned about his harassment. It found the claim that he had been locked up in the Vavuniya police station to be implausible as the appellant failed to mention the claim in his statements. The IAA considered the claim had been fabricated in response to the Delegate's direct question; (b) it rejected the claim that the authorities were still interested in him because he had the same name as an LTTE leader. The country information indicated that the LTTE leader was dead. However, it did accept that he was taken to an SLA camp three times and questioned because of the similarity in the names but found that as the LTTE leader had died in 2009 the appellant would not be of adverse interest; (c) it rejected the appellant's claim to have been kidnapped three times; the appellant's evidence was vague. It rejected the claim that he would not know how many times he had been kidnapped or that he would fail to mention these incidents because he had forgotten them; (d) it did not accept that the appellant could fail to mention in his statement of claims about being forced to go into hiding, moving from place to place and living with his sister in order to avoid being kidnapped if such a claim were true. The IAA found that the appellant had fabricated this claim. He did not mention being interrogated or being accused of assisting the LTTE; (e) the IAA did not accept that the appellant had attended Martyrs Day celebrations. He gave inconsistent evidence about where he had attended the celebrations and had provided no independent evidence to substantiate his attendance. Bearing in mind the other findings concerning the applicant's fabricated evidence, the IAA was not satisfied that the appellant had attended the celebrations as claimed. The IAA accepted that various members of the appellant's extended family were members of the LTTE and that he came from an area that had been under LTTE control. It considered country information that suggested a lessening of the difficulties experienced by the Tamil population. The IAA noted that close relatives of high-level LTTE members may be subject to monitoring. Although the SLA would have monitored and harassed the appellant from time to time, the IAA did not accept that he was detained by the police, kidnapped, questioned or interrogated, required to go into hiding or attended Martyrs Day celebrations. The IAA found that there was no credible evidence to indicate that the appellant would be perceived as having a role in the LTTE. 12 Other aspects of the Authority's reasons are referred to later when addressing the four grounds of appeal.

THE FEDERAL CIRCUIT COURT 13 The Federal Circuit Court dealt with grounds one and two concisely. In circumstances where the practical question is whether the Authority committed jurisdictional error, it is not necessary to set out in detail the reasoning of that court. It is sufficient for present purposes to note that, if in fact the Authority committed a jurisdictional error, the primary judge may be found to have erred in concluding that no jurisdictional error had occurred.

Ground 1 14 In considering whether an applicant faces a "real chance" of persecution, the Authority would err if it failed to assess the risk of harm in the reasonably foreseeable future: AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 at [26] (Perry J). 15 In carrying out such an assessment, a decision-maker may properly have regard to matters in the past, such matters being probative of what may happen in the future. In AIE15 at [27], Perry J referred to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [33]-[35] (the Court), and the following passage in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 16 The appellant's case was that it should be inferred from the Authority's reasons and the course of events before those reasons were published that the Authority failed "to consider the situation into the reasonably foreseeable future". In particular, it was noted, correctly, that the Authority did not refer to the phrase "reasonably foreseeable future" in its reasons. That phrase, it should be observed, is not a phrase which is used in the legislation. 17 The Authority summarised the test contained in s 5J of the Act at A[24], stating: Under s 5J of the Act 'well-founded fear of persecution' involves a number of components which include that: • the person fears persecution and there is a real chance that the person would be persecuted • the real chance of persecution relates to all areas of the receiving country • the persecution involves serious harm and systematic and discriminatory conduct • the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion • the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and • the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification. 18 There is nothing about the way the Authority summarised s 5J which indicates that it considered the test did not require consideration of the "reasonably foreseeable future". 19 The Authority went on to consider whether there was a "well-founded fear of persecution" arising out of: (a) the fact that the appellant was Tamil; and (b) the claim that he had, or would be perceived to have, links with the Liberation Tigers of Tamil Eelam (LTTE): A[25] to A[27]. As mentioned, the Authority did not use the phrase "reasonably foreseeable future" in this, or any, part of its reasoning. 20 It is not the use of a phrase which determines whether there was error. The question is whether, as a matter of fact, the Authority failed to consider the reasonably foreseeable future in assessing, by reference to the claims made by the applicant before the Authority, whether there was a well-founded fear of persecution. The inverse proposition is also true: the mere use of the phrase "reasonably foreseeable future" does not immunise a decision-maker from falling into error if, in fact, the decision-maker fails to consider that issue: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [3] (Allsop J); AIE15 at [33]. 21 In SZGHS, Allsop J held that the Tribunal had failed to take into account the reasonably foreseeable future in circumstances where a critical part of the appellant's case was that he would campaign for the Fiji Labour Party (FLP), should he return to Fiji. The Tribunal's reasons, however, focused on the "current political situation" and did not refer to events which might subsequently occur. His Honour said at [28]: Critically, however, looking at all of the reasons of the Tribunal, there was a failure to address the reasonably foreseeable future in the context of the claims made. The dealing with the three incidents was based on immediate facts - no elections looming and the character of the present government. This reflected a focus on immediacy which was no real assessment of whether in the future, with elections looming, with the first appellant campaigning for the FLP, he would not face a similar beating for the same reasons, or threats from elements of the Taukei Movement who had already targeted him. The Tribunal's paragraph dealing with the three incidents was not just a body of introductory remarks; they were the encapsulated rejection of one body of the appellants' claims. The Tribunal failed, it seems to me, to deal with the fears of the first appellant based on the beating in April/May 1999 by reference to the reasonably foreseeable future and on the assumption that the first appellant will continue to support the FLP. 22 In the present case, the appellant contended that the situation in Sri Lanka might deteriorate. This contention arose in the following way. The delegate had referred to a report prepared by the Department of Foreign Affairs and Trade (DFAT) titled 'Country Information Report: Sri Lanka' dated 24 January 2017 (2017 DFAT report), in respect of which the delegate stated (footnote omitted): DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. It is reported that the Sri Lankan police are now responsible for civil affairs across the country. Whilst a largely idle military presence remains in the former LTTE-controlled areas, these officers are generally restricted to their barracks. Members of the Tamil community have described a positive shift in the nature of their interactions with the authorities, including feeling able to question their motives or object to monitoring. 23 Being a fast-track reviewable decision, the matter was referred to the Authority for review under s 473CC of the Act. The appellant made a submission to the Authority which included a submission that, whilst the situation in Sri Lanka might continue to improve, it might also move in a different direction, including backwards by deteriorating. More specifically, the appellant's submission included the following (footnote omitted): It is alleged in general terms, the situation for Tamils in Sri Lanka in relation to their civil and human rights has improved contrary to the overwhelming independent country information on human rights in Sri Lanka. However, the said report does not follow that the situation will continue to improve or satisfactory [sic]. Where the political situation in a country is "fluid", political developments concerning human rights and civil rights can move in different direction [sic], including backwards (by deteriorating) - of the political situation in Hungary and Poland in recent years. Executive Director of the International Truth and Justice Project, Yasmin Sooka said: "It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security reform programme which is sadly missing in Sri Lanka". 24 The Authority dealt with the 2017 DFAT report at A[25] and extracted passages from that report, including the following: DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. The Sri Lankan police are now responsible for civil affairs across Sri Lanka. While a sizeable (and largely idle) military presence remains in the north and east, armed forces personnel are generally restricted to their barracks. While some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities … 25 The Authority's reasons are not to be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. The Authority accepted country information that confirmed that monitoring and harassment had "decreased significantly" and that Tamils had described a "positive shift" in the nature of their interactions with the Sri Lankan authorities. The Authority made findings based on country information that Tamil ethnicity, of itself, did not warrant international protection and neither did a connection with the LTTE, other than where the person had or was perceived to have a significant role in the LTTE. 26 At A[26], the Authority stated (footnote omitted): The UK Home Office Report on Tamil separatism states at paragraphs 3.1.2 and 3.1.3 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. 27 Although the Authority accepted that the appellant had family members with links to the LTTE, it did not accept any aspect of his claims about the substantive harm that he alleged had occurred to him in the past. Those findings necessarily fed into the Authority's consideration of what would happen to the appellant upon his return to Sri Lanka. Save for the risk to Tamils generally, these personal claims constituted the entirety of the appellant's claims to protection. The Authority stated at A[27] (footnotes omitted): DFAT reports that military and security forces maintain a significant presence in Mannar and, in September 2016, a low-level of visible military presence in the Northern Province was observed. However the checkpoints on the major roads travelling into and out of Mannar were removed in 2015. DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring. I accept that the applicant was never a member of the LTTE. I accept that the SLA would have monitored and harassed the applicant and, from time to time, asked him to attend the SLA camp for questioning because he was a Tamil male. However, I did not accept that the applicant was detained by the Sri Lankan police, that the applicant was ever kidnapped by TELO and/or PLOT, that the applicant was ever questioned/interrogated by the CID and/or PLOT, that the applicant was required to go into hiding six to seven months before he departed Sri Lanka for Australia, that the applicant's uncle was kidnapped by PLOT, that the applicant attended Martyr's Day celebrations or that there were photographs of the applicant's relatives at the Martyr's Day celebrations. There is no credible evidence before me to indicate that the applicant would now be perceived as having a role in the LTTE or in post-conflict Tamil separation. Having regard to the findings of fact and all the information before me, I am therefore not satisfied that the applicant's profile would give rise to any adverse interest in him upon his return to Sri Lanka. I am satisfied that the applicant can return to Sri Lanka and would not face a real chance of any harm by the Sri Lankan military or any of the Sri Lankan authorities for these reasons. 28 In my view the Authority did address the appellant's claims by reference to the reasonably foreseeable future. There was no specific claim not dealt with of a kind such as that the subject of consideration by Allsop J in SZGHS, so that it could be inferred from the reasons that the Authority failed to address the reasonably foreseeable future. Whilst it would have been preferable to deal expressly with the claim that the situation in Sri Lanka could deteriorate, the claim was in fact considered and implicitly rejected at A[25]. So too the Authority in fact considered the reasonably foreseeable future in reaching the conclusion it did, namely that the appellant would not face a real chance of harm by the Sri Lankan military or any of the Sri Lankan authorities on return. 29 The Authority's conclusion that there was no credible evidence that the appellant "would now be perceived" (emphasis added) as having any LTTE role carried with it the implication that there was no real chance of harm into the future. The reasons read as a whole indicate that the Authority was assessing what might happen on return, including into the future. Whilst the language certainly does not lead inexorably to that conclusion, read fairly, it does. The Authority referred to it not being satisfied that the appellant's profile "would give rise" to adverse interest and that the "applicant can return to Sri Lanka and would not face a real chance of any harm". It is true that these matters might be read as findings only of the immediate consequences upon return. However, the better reading is that the Authority was not confining its analysis only to such consequences. This is confirmed by the reasons at A[28] to A[31], which address what might happen on return to Sri Lanka, including the fact that the appellant might be detained for a short period. 30 Accordingly, ground one must be rejected.

Ground 2 31 As recorded earlier, ground two asserts that it was legally unreasonable to reverse the finding by the Minister's delegate that the appellant attended a Martyrs' Day commemoration in Sydney in 2016 without exercising, or considering exercising, the power under s 473DC(3) of the Act to provide the appellant opportunity to comment. 32 The full court has held that there may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s 473DC(3) of the Act - see: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. The question of whether a failure to consider exercising the discretion in s 473DC(3) is legally unreasonable must be approached from the perspective of the specific provisions of Pt 7AA, and not from the perspective of the rules of natural justice unaffected by provisions such as those in Pt 7AA, or indeed under some other statutory regime (such as Part 7). 33 When determining whether a failure to consider exercising the discretion is legally unreasonable, it is important to be conscious that the scheme of Pt 7AA includes that the Authority "does not have a duty to get, request or accept, any new information": s 473DC(2). It is equally important to recall that Pt 7AA proceeds from a default position that there will not be a hearing, and that the review will be conducted on the papers: Plaintiff M174/2016 v Minister for Immigration and Boarder Protection and Another (2018) 353 ALR 600 at [22]. Pt 7AA does not contain provisions such as ss 424A and 425, which are elements of the statutory scheme under Pt 7. Whilst the facts of this case may have given rise to a different result in light of the statutory scheme under Pt 7 and decisions like SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152, it does not follow that the same result follows under Pt 7AA. 34 There is no general obligation created by Pt 7AA to put a review applicant on notice that the Authority might reach a different conclusion to that reached by the delegate. In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, the Full Court observed at [72]: In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. 35 In my view, the failure (assuming there was one) to consider exercising the discretion in s 473DC(3) was not legally unreasonable. The Authority in fact exercised the function of review entrusted to it under Pt 7AA and did so in the manner that Part contemplates: that is, on the papers and without generally being obliged to indicate that it may reach a different conclusion to that reached by the delegate, which is adverse to the referred applicant. There was nothing in the claims or the further submissions to the Authority on the issue of the Martyrs' Day commemoration that added to the way in which the claims had previously been raised. 36 The Authority was permitted to depart from the findings of the delegate and was not under an obligation, at least in the circumstances of this case, to forewarn the appellant of that proposed departure or invite his comment. 37 Accordingly, ground two must be rejected.

Ground 3 38 Ground three sought to challenge the conclusions reached in respect of country information and to challenge the application of matters contained in the country information to the appellant's circumstances. 39 The question of what country information to prefer and what weight to give country information is a matter for the Tribunal: NAHI v Minister for Immigration [2004] FCAFC 10 at [11], [13] (Gray, Tamberlin and Lander JJ); VQAB v Minister for Immigration [2004] FCAFC 104 at [26], [32] (Beaumont, Weinberg and Crennan JJ); VWFW v Minister for Immigration [2006] FCAFC 29 at [63] (Lander J; Gray and Kiefel JJ agreeing). That does not mean that conclusions based on country information are immune from judicial review. However, the appellant did not establish any basis to conclude that the Authority had erred in a manner which gave rise to jurisdictional error in this case. 40 The particulars to ground three refer to the current United Nations High Commissioner for Refugees Guidelines (UNHCR Guidelines) from December 2012, which were also referred to by the appellant in the written submissions provided to the Authority, referred to earlier. The appellant submitted at paragraph 16 of his submissions (footnote omitted): The current UNHCR Guidelines from December 2012, reiterated in the most recent DFAT report of 2015, identify that previous real perceived links with the LTTE that go beyond residency in an LTTE-controlled area may lead to adverse treatment for persons returning to Sri Lanka. A range of risk profiles are listed, but broadly they relate to combatants, supporters, those who were involved in sheltering or transporting LTTE personal [sic] or goods, or those that funded or provided other support or are otherwise sympathetic to the LTTE. 41 The Authority did not refer to the UNHCR Guidelines in its statement of decision. However, the Authority was not obliged to refer to each piece of country information considered, at least in the circumstances of this case. The Authority was obliged to set out the reasons for its decision by s 473EA, and it did so in this regard by referring to the country information which it did accept, in particular the 2017 DFAT country information report and the UK Home Office report referred to earlier. To the extent that the UNHCR Guidelines were inconsistent with those sources, then the Tribunal implicitly rejected that country information. 42 The Authority formed the view that the appellant's claims were not credible, even though it accepted association between members of the appellant's family and the LTTE. This finding was central to the Authority's assessment of the application to the appellant's specific circumstances of the matters accepted from the country information. The Authority referred to, and evidently accepted, country information (the UK Home Office report) that past LTTE membership or connections, unless significant, would not warrant international protection: at A[26]. 43 The Authority's conclusions were open to it and the appellant has not established that those conclusions were affected by jurisdictional error.

Ground 4 44 Ground four turns on the application of the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, a case referred to with approval in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at [94] and [95]. The principles in those decisions can only apply if the Authority had real doubt about its rejection of whether past events occurred. In this regard, the Authority's reasons are to be read in a practical common-sense manner, noting that the decision-maker is not required to express her findings as to whether alleged past events actually occurred in a manner that makes explicit her degree of conviction or confidence that the findings are correct: Rajalingam at [64], [67]; MZXSA at [95]. 45 The Authority's reasons, in particular at A[26] to A[29], show that the Authority did not have any real doubt about its findings. It follows that this ground cannot succeed.

Conclusion 46 I would not grant leave to raise grounds three and four on the appeal because they lack sufficient merit for the reasons identified earlier. 47 I have rejected grounds one and two. 48 Accordingly, the appeal must be dismissed.

Costs 49 The Minister applied for his costs of the appeal. The appellant indicated that he is not working, that he is ill, and that he does not have the capacity to meet a costs order. The Court is sympathetic to the appellant's circumstances, however the ordinary rule is that the successful party in litigation, absent some good reason, is entitled to an order for their costs. The reasons advanced by the appellant for not making a costs order in the Minister's favour do not alter that result. 50 Accordingly, the appeal is dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.