CIO16 v Minister for Immigration and Border Protection

IAA's decision 6 On 28 July 2016, the IAA affirmed the delegate's decision. 7 The IAA accepted that the appellant "was detained for some seven months during 2008-09 by the SLA" and that he "was subject to mistreatment including torture" during that period (at [15]). It also accepted as plausible that the appellant's younger brother was forcibly recruited to perform work for the LTTE for a short period and was subsequently detained for 12 months in a rehabilitation centre (at [20]). 8 The IAA ultimately found, however, that because of the improved situation for Tamils in Sri Lanka since the end of the civil war and the appellant's lack of a profile that would attract ongoing interest from the authorities, it was not satisfied that the appellant faced a real chance of serious harm from Sri Lankan authorities due to an imputed pro-LTTE political opinion (at [23]). 9 In this regard, it emphasised (at [16]) that the Department of Foreign Affairs and Trade (DFAT) country report indicated that: the overall situation for Tamils in Sri Lanka had improved since the end of the civil war in 2009; the monitoring and harassment of Tamils in the North and East of Sri Lanka had decreased under the new government; there was a moderate level of societal discrimination against Tamils in Sri Lanka, but there was no evidence of official laws or policies that discriminated based on ethnicity or language; and Tamil civilians living in former LTTE areas in the North and East, including Tamils that provided low level support to the LTTE might be monitored by Sri Lankan authorities, but were at low risk of being detained or prosecuted. 10 The IAA also referred (at [17]) to the United Nations High Commissioner for Refugees (UNHCR) Guidelines published in December 2012, which indicated that only Tamils with particular profiles were at risk of being persecuted in contemporary Sri Lanka on account of LTTE affiliations, including, for example: persons who held senior positions with considerable authority in the LTTE civilian administration; former LTTE combatants; former LTTE combatants who were subsequently employed by the LTTE in functions within the administration, intelligence, "computer branch", or media; former LTTE supporters involved in sheltering or transporting LTTE personnel, or the supply and transport of goods; LTTE fundraisers and propaganda activists; and persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. 11 The IAA considered that the UNHCR Guidelines and DFAT reports indicated that Sri Lankan authorities do not impute every Tamil with a pro-LTTE political opinion; Sri Lankan authorities had sophisticated intelligence gathering techniques; and people with significant personal or family links to the LTTE may still face a real chance of harm if returned to Sri Lanka (at [18]-[19]). 12 The IAA found that the appellant's claims, taken at their highest, were "not of a nature contemplated within the broader parameters of the kinds of examples" referred to above (at [19]). The IAA found that the appellant's detention following his interception at an SLA checkpoint, and his subsequent mistreatment during his detention "was in the context of a civil war which itself ended during 2009" (at [19]). The IAA considered that the appellant's release from detention in April 2009 indicated that he did not have "a profile attracting ongoing interest from the authorities, even at that time" (at [19]). It said that this finding was supported by the appellant's own evidence that, following his release from detention, he was only required to report to the CID on an "as requested" basis and there was no reporting requirement imposed upon him as a condition of his release (at [19]). 13 The IAA also found that the appellant's younger brother's brief forcible recruitment to perform work for the LTTE and subsequent detention for 12 months in a rehabilitation centre did not place the appellant "within the category of persons with family links to persons matching any of the profiles outlined by the UNHCR as at risk of persecution in contemporary Sri Lanka" (at [20]). 14 The IAA gave weight to country information which indicated that the transferral of authority in the northern parts of Sri Lanka, including where the appellant's family reside, from military to civilian administration reduced the likelihood of the appellant being subjected to ongoing monitoring now or in the foreseeable future (at [21]). Although the IAA accepted that it was possible that the appellant might be approached by the SLA or CID in the future if he returned to the North where he previously resided, it was not satisfied that this would indicate an ongoing interest in the appellant by the authorities or a suspicion of LTTE connections upon return and would not amount to serious harm (at [21]). 15 The IAA was also not satisfied that the appellant faced a real chance of serious harm due to being a returnee Tamil from a Western country. In rejecting this claim, the IAA referred to DFAT reports indicating that thousands of Tamils have been returned to Sri Lanka since the end of the civil war and, although there have been reported instances of returnees being harmed, those were people with substantial links to the LTTE or outstanding warrants. The IAA did not consider that the appellant held a profile of that kind (at [27]). 16 The IAA also considered whether the appellant would face relevant harm on the basis that he illegally departed Sri Lanka, notwithstanding that the appellant did not make specific claims about this. Having regard to relevant country information, the IAA stated (at [33]): On return to Sri Lanka, I find the [appellant] would likely be charged and fined under the [Immigrants and Emigrants Act (IAEA)] and then released. In the event that the [appellant] elected to plead not guilty to the offence under the IAEA, he would either be granted bail on personal surety or a family member [sic]. There is no suggestion the [appellant] was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face any chance of imprisonment, but it is likely that he will be fined. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the [appellant] would face, I find there is not a real chance that the [appellant] would face such a period of detention or imprisonment. 17 The IAA also found that any questioning and detention that the appellant may experience as a result of being charged under the Immigrants and Emigrants Act "would be brief and would not constitute serious harm" (at [34]). 18 The IAA ultimately was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention and, therefore, it concluded that the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act. The Tribunal also concluded that the appellant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act.

Federal Circuit Court proceeding 19 On 23 August 2016, the appellant sought judicial review of the IAA's decision in the Federal Circuit Court. 20 By a further amended application dated 1 May 2017, the appellant advanced 3 grounds of review. Only ground 1 is relevant to the present appeal. That ground was in the following terms: 1. The applicant claimed that one reason he faced a real risk of persecution if required to return to Sri Lanka was because of his family link to his younger brother whom the SLA believed had voluntarily worked for the LTTE for one or two months. The Immigration Assessment Authority ("the IAA") found at paragraph 20 of its decision that this family link did not place the applicant within one of the six profile categories in paragraph 17 of its decision. However, a separate question was whether, if the applicant was required to return to Sri Lanka, this feature of the applicant's background or profile (that is, his family link to his younger brother who was an active LTTE member) would increase the risk or frequency of monitoring of the applicant by the authorities, or the severity of monitoring conditions. The IAA failed to deal with this aspect of integer of the applicant's claim. This is a jurisdictional error. 21 The application was heard on 10 May 2017. Both the appellant and the Minister were represented at the hearing. On 20 August 2018, the primary judge dismissed the appellant's application. 22 Relevantly, in relation to ground 1, the appellant's representative submitted to the primary judge that, having concluded that the appellant's brother did not come within the profiles identified by the UNHCR for a person with real or perceived links to the LTEE, it failed to consider the separate question of whether the family link to his brother would increase the risk or frequency of monitoring of the appellant by authorities. The primary judge stated in summary that the argument was, in essence, that "the IAA failed to consider a claim, or integer of a claim, relating to increased or more severe monitoring conditions when the authorities discovered the relevant link" with the appellant's brother (at [15]). 23 The primary judge held (at [19]-[23]): I am not satisfied that the [appellant] has established that there was a failure on the part of the IAA to consider a relevant issue or claim advanced by him. The question of whether the link to his brother would increase the risk or frequency and/or severity of monitoring of his movements by the Sri Lankan authorities was not clearly articulated as a separate question that required consideration. The claims set out in his statutory declaration were articulated on the basis that he would be at risk of being tortured and killed as a Tamil who had previously been accused of having LTTE sympathies, detained, tortured, and then subjected to reporting requirements. The IAA assessed his application on that basis and accepted that the history he gave was plausible. I accept the submission of the first respondent that, in dealing with the [appellant's] claims, it acted on the basis that the history with respect to his brother was also plausible. In applying the UNHCR guidelines as to the profiles of a person at risk for Sri Lanka, the IAA satisfied itself that the [appellant's] brother did not fall within any of the profiles and that as such the [appellant] did not fall within item (6), being a person with family links to a person with a relevant risk profile. I accept the submission of the Minister that any implications of the [appellant's] link to his brother were subsumed in that finding. Further, the complaint that the IAA did not consider the risk of an increase in frequency and severity of monitoring by the authorities is subsumed by the more general finding that country information had led it to conclude that the [appellant] would not be of "ongoing interest to the authorities." I am satisfied that the [appellant's] claims as presented were squarely addressed by the authority. It was not the role or the responsibility of the IAA to rearticulate the claims made in order to cover every conceivable angle from which a claim might possibly be made. (Citations omitted)

Proceeding in this Court 24 By a notice of appeal filed on 6 September 2018, the appellant raised the following grounds of appeal: 1. The applicant claimed that one reason he faced a real risk of persecution if required to return to Sri Lanka was because of his family link to his younger brother whom the SLA believed had voluntarily worked for the LTTE for one or two months. The Immigration Assessment Authority ("the IAA") found at paragraph 20 of its decision that this family link did not place the applicant within one of the six profile categories in paragraph 17 of its decision. However, a separate question was whether, if the applicant was required to return to Sri Lanka, this feature of the applicant's background or profile (that is, his family link to his younger brother who was an active LTTE member) would increase the risk or frequency of monitoring of the applicant by the authorities, or the severity of monitoring conditions. The IAA failed to deal with this aspect of integer of the applicant's claim. This is a jurisdictional error. His Honour erred in holding that the applicant's claims as presented were squarely addressed by the authority. Further, His Honour erred in holding that the complaint the IAA did not consider the risk of an increase in frequency and severity of monitoring by the authorities is subsumed by the more general finding that country information had led it to conclude that the applicant would not be of "ongoing interest to the authorities". 2. At the time the applicant departed Sri Lanka in 2012, he had a continuing obligation to report to the authorities. He therefore breached the reporting obligation. A question was whether, if the applicant was required to return to Sri Lanka, he would be punished for breach of the reporting obligation in a manner involving serious harm. The IAA failed to deal with this question. This is a jurisdictional error. His Honour erred in holding that the Authority considered the implications of his illegal departure and returning from a Western country and made an overall assessment of the risk of persecution. Further His Honour erred in holding that there was no claim made on the basis of increased risk because of a failure to comply with reporting obligations since the time of his departure. 25 The appellant, by his solicitor, filed written submissions on 19 March 2019. These submissions stated that the appellant only pursued the first ground of appeal set out above, which substantially reflects ground 1 of his application to the Federal Circuit Court, and that he "d[id] not wish to press" ground 2. The Minister also relied on written submissions filed before the hearing. 26 In his written submissions, the appellant stated that: The crux of … ground [1] is whether there is increased risk if the Appellant was to return to Sri Lanka. Increased risk is to be interpreted as increased risk of persecution, which is part of the well-founded fear test in accordance with s 36 of the Migration Act. In other words Appellant contends that the [IAA] misapplied the well-founded fear test regarding the harm he will face on return 27 In this regard, the appellant contended in written submissions that: (1) the appellant clearly claimed that "many Tamils from [his] area were taken by the CID and later on they disappeared"; (2) the appellant was clear that he was never, and never planned to be, involved with the LTTE, but nonetheless Sri Lankan authorities suspected that he was involved in the LTTE which resulted in his mistreatment and torture; (3) the IAA "foreclosed instances whereby persons might have been mistreated depending on the individual circumstances". In particular, he submitted that the IAA "focussed excessively" on the UNHCR Guidelines, "mistakenly concluding only those Tamils with certain profiles will be persecuted" and failing to understand that the UNHCR Guidelines were simply guidelines and a non-exhaustive list of instances where Tamils might face harm; (4) there was material before the IAA which suggested that returnees could be mistreated. In this regard, the appellant: (a) referred to the IAA's observation at [44] that "DFAT advise[d] that the risk of torture or mistreatment for people suspected of an offence under the [Immigrants and Emigrants Act] is low" and submitted that this does not mean that the risk does not exist at all and the appellant does in fact run a risk of being mistreated and tortured; (b) referred to the IAA's observation at [30] that "DFAT reports … indicate that returnees will be processed by the Department of Immigration and Emigration, (DOIE), the State Intelligence Service (SIS) and the CID based at the airport. … SIS checks the returnee against intelligence databases". The appellant submitted that the issue is not merely the identity of the appellant, noting that he was held for seven months and was on reporting conditions thereafter, he said that his risk has increased since his departure as he will have to undergo the checks on return; and (c) noted that there was also other material before the IAA which spoke of torture and mistreatment, and there was specific information about torture and mistreatment of returnees. 28 The appellant also submitted in writing that: 1. Appellant gave a credible version of what happened to him. 2. Sri Lankan authorities will have Appellant's past records. 3. There is evidence above evidence shows that although the war is over there is mistreatment. This is supported by reputable western agencies. 4. It was not open to the [IAA] to come to the decision in came as it failed to consider the increased risk on return Appellant faced. 5. There was evidence of mistreatment. [IAA] did not address itself to that material that spoke about possible mistreatment. This was a relevant consideration for the [IAA] based on increased risk as he was only asked to report as required in the past. 6. [IAA] misapplied the well-founded fear test as there was evidence of mistreatment and torture of returnees, an increased risk which Appellant faces on return. 7. Appellant was imputed with the LTTE profile. Authorities might have suspected that he was a cadre. Every category in the UNHCR List can have a corresponding imputed nature. That is someone may be imputed although he is not really in the LTTE as in Appellant's case. 8. It is conceded that some of the points raised now were not ventilated in the first instance. Therefore in all fairness to his Honour, His Honour has not erred in his judgment. (Errors in original) 29 Both parties concentrated at the hearing on the submissions numbered [1]-[8] in the appellant's written submissions set out immediately above. 30 As Mr Rajadurai, who appeared for the appellant, accepted the appellant's written submissions appeared to treat ground 1 as an allegation that the IAA misapplied the correct test regarding apprehended persecutory harm, not as a ground complaining of a failure to consider a claim (as that ground is expressed in its terms and as the primary judge understood the equivalent ground before him). It appeared that the central complaint advanced in the appellant's written submissions was that the IAA focussed excessively on the UNHCR Guidelines and had insufficient regard to the appellant's circumstances, particularly in light of the materials before the IAA regarding mistreatment of returnees. It further appeared from the submissions extracted at [28] above that the appellant also makes a generalised complaint that the IAA's findings were against the weight of evidence before it, or were not open to it. 31 At the hearing, Mr Rajadurai focussed on whether the appellant had established the relevant nexus with the Refugees Convention, arguing that the appellant had clearly established a well-founded fear of persecution. He concentrated on the appellant's subjective fear based on his past experiences, as well as on the appellant's fear that the security checks he would face on return to Sri Lanka would reveal his past and might lead to an imputation that he was an LTTE cadre. Mr Rajadurai also contended that the fact that conditions had improved in Sri Lanka according to the IAA's findings did not mean that the appellant was not still at risk of being mistreated and tortured. He further submitted that the social group described by the IAA as "returnee Tamil from a Western country" was too broad and did not properly reflect the appellant's individualised circumstances. 32 In reply, Mr Rajadurai submitted that (contrary to the Minister's submission) there was an evidentiary basis for his submission that the authorities would access records concerning the appellant's past on return to Sri Lanka that might give rise to a suspected involvement with the LTTE. 33 In written submissions, the Minister addressed ground 1, submitting that there was no error in the primary judge's decision as the appellant had not claimed that he was at risk of harm because of increased monitoring on account of his links to his brother. The Minister noted that this claim was not made expressly, and also submitted that it did not "clearly or squarely" arise on the materials before the IAA. In this regard, the Minister relied AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]. 34 At the hearing, Mr Solomon-Bridge, counsel for the Minister, submitted that numbered [1]-[3] in the appellant's written submissions invited merits review: see [28] above. He submitted that there did not appear to be any evidentiary basis for the appellant's assertion that the Sri Lanka authorities would have records concerning the appellant's past from which they might impute a connection with the LTTE. He further noted that the IAA had paid regard to the appellant's claim that he was released from detention by the SLA in April 2009 and had found that this indicated "that the [appellant] was not of a profile attracting ongoing interest from the authorities, even at that time". Mr Solomon-Bridge drew attention to the fact that the IAA had specifically found that, based on country information, the overall situation for Tamils in Sri Lanka had improved since 2009; and that DFAT and UNHCR had assessed that Tamil civilians who live in former LTTE areas in the North and East, including Tamils who had provided low level support to the LTTE, may be monitored by Sri Lankan authorities but are at low risk of being detained or prosecuted. He further submitted that the premise on which numbered [4] and [5] in the appellant's written submissions (see [28] above) depended was contradicted by these findings. As to numbered [6], counsel for the Minister referred to his previous submissions. As to numbered [7], counsel noted that the appellant had claimed merely that he had been accused by the SLA of being a supporter of the LTTE, and had never claimed to have been thought to be an LTTE cadre. 35 Further, counsel for the Minister drew attention to the fact that the IAA had dealt with the particular social group of returnee Tamils precisely in the way the claim was articulated by the appellant. The appellant had not qualified his description of the particular social group by reference to individualised characteristics. 36 The Minister opposed the grant of leave to raise the new grounds indicated by the appellant, both in written submissions and at the hearing, on the basis that they lacked sufficient merit and no adequate explanation had been given concerning the failure to raise them previously before the primary judge.

Consideration 37 It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. For the reason stated below, I would refuse leave. 38 As noted above, the first aspect of the new ground was that the IAA misapplied the correct test regarding apprehended persecutory harm, by paying overly much regard to the UNHCR Guidelines and not paying enough regard to the appellant's circumstances, particularly in light of the materials before the IAA regarding the mistreatment of returnees. The second aspect of the new ground was a generalised complaint that the IAA's findings were against the weight of evidence before it, or were not open to it. 39 First, it is well-established by the authorities that it is for the administrative decision-maker (here, the IAA) to determine the country information that it considers most cogent and the weight to give it. The country information derived from DFAT reports and the UNHCR Guidelines was clearly relevant, and there could be no error in the IAA considering that information as it did. The appellant's argument was, in substance, that the findings made by the IAA in reliance on this information were not open to it. Given that the IAA's findings were based on the country information in question, it cannot be said that its findings were not open to it, even if there was other information before it that might have supported a different conclusion. Furthermore, there is nothing to support the contention that the IAA did not have regard to the appellant's individual circumstances; indeed the IAA's reasons are clearly directed to a consideration of the appellant's own past history (much of which it accepted) and its significance if he were returned to Sri Lanka. Ultimately, the dispute is about the facts as found and the conclusions drawn from those factual findings. There is no jurisdictional error shown here. 40 Secondly, as regards numbered [2] in the appellant's submissions (see [28] above), the IAA accepted that on return to Sri Lanka, the appellant's travel and identity documents would be scrutinised at the airport; he would be checked against intelligence databases; and checks would be made regarding his criminal history. Significantly, however, the IAA was not satisfied that the appellant had identification concerns or criminal or security records that would raise the concern of the relevant authorities. In this circumstance, it cannot be said that the IAA failed to consider the fact that Sri Lankan authorities might access the appellant's past records; and nothing further apparently turns on the appellant's allegation at numbered [2]. 41 Further, as regards numbered [3]-[6] of the appellant's written submissions (see [28] above), the IAA specifically found that, based on country information, the overall situation for Tamils in Sri Lanka had improved since 2009, and that DFAT and UNHCR assessed that Tamil civilians who live in former LTTE areas in the North and East (including Tamils who had provided low level support to the LTTE) may be monitored by Sri Lankan authorities but are at low risk of being detained or prosecuted. The premise on which numbered [3]-[6] depended was contradicted by these findings. In any event, as already indicated, there is no basis shown to impugn the IAA's finding that it was not satisfied that the appellant faces a real chance of serious harm from Sri Lankan authorities due to an imputed pro-LTTE political opinion, either now or in the reasonably foreseeable future if he returns to Sri Lanka. 42 As to numbered [7] of the appellant's written submission (see [28] above), I accept that, as counsel for the Minister noted, the appellant had claimed only that he had been accused by the SLA of being a supporter of the LTTE, and had never claimed to have been thought to be an LTTE cadre. 43 Finally, it must be accepted that the IAA addressed the appellant's claim about his membership of a particular social group of returnee Tamils from the West in the manner in which the appellant formulated this claim. In any event, the IAA also addressed the appellant's particular circumstances in so far as it considered, and rejected, the possibility that the appellant had a profile of a kind that might mean the appellant would be harmed by the Sri Lankan authorities due to being a returnee Tamil from the West. 44 Accordingly, there is, in my opinion, insufficient merit in the proposed new ground or grounds to justify granting leave to raise them on this appeal. I would reject Mr Rajadurai's alternative suggestion that there was no need for leave to raise the arguments discussed above since they were subsumed into ground 1. 45 As to ground 1 of the appellant's notice of appeal, this was in substance an allegation that the IAA failed to deal with an integer of the appellant's claims. This integer was that the appellant's family link to his younger brother "would increase the risk or frequency of monitoring of the [appellant] by the authorities, or the severity of monitoring conditions" if he were returned to Sri Lanka. The ground alleged that the primary judge erred in holding that the appellant's claims were squarely addressed and any such claim regarding increased monitoring was subsumed in more general findings. 46 It is well-established that a failure by the IAA to consider a claim or an integer of a claim is a jurisdictional error. The relevant principles were summarised by the Full Court in AYY17 at [18], in particular as they apply to IAA reviews under Pt 7AA of the Migration Act. 47 On the basis of the materials before the Court, it is apparent that the appellant first raised a claim relating to his brother's involvement with the LTTE during his interview with the delegate. The IAA referred to this claim in the following terms at [13] of its reasons: [13] At the interview, the [appellant] added information concerning his younger brother …, whom he claimed had been forced to work by the LTTE for approximately one or two months. This brother was subsequently detained by the SLA, who did not accept that this brother had been forcibly recruited. This brother was held in a form of rehabilitation centre for one year. It was not a jail and the public could visit. The [appellant] visited his brother once during this 12 month period. 48 There was, however, no express claim made by the appellant that his link to his brother "would increase the risk or frequency of monitoring of the [appellant] by the authorities, or the severity of monitoring conditions". Nor did any claim about increased monitoring of the appellant as a consequence of his link to his brother clearly arise on the materials before the IAA. 49 It is also important to bear in mind that the IAA's reasons, like a Tribunal's reasons, are "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. As already noted, the primary judge found that the appellant's claims "as presented" were squarely addressed by the IAA, and it was not the IAA's role or responsibility "to rearticulate the claims made in order to cover every conceivable angle from which a claim might possibly be made" (at [23]). Reading the IAA's reasons fairly and as a whole, even if such a claim was made by the appellant, it was subsumed in the IAA's other findings. There is no error shown in the primary judge's findings.

Disposition 50 The Federal Circuit Court did not err in finding that no jurisdictional error was disclosed in the IAA's consideration of the appellant's claims. 51 For the foregoing reasons, the appellant's appeal should be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.