CIW17 v Minister for Immigration, Citizenship and Multicultural Affairs

Decision of the IAA 7 The IAA affirmed the decision of the delegate on 22 May 2017 to refuse to grant the appellant a SHEV, and provided reasons in support of its determination (A). 8 The Authority found the appellant to be a credible witness and accepted his claims as to facts and events: A[12]. 9 The Authority summarised the appellant's claims for protection at A[8]: • He is a Tamil Hindu who was born in the Batticaloa district in Eastern Province of Sri Lanka. His mother and siblings remain in the family home in Sri Lanka. • In 1996, his father was hit by a vehicle being driven by members of the SLA. His father was killed and the SLA blamed the father for the accident. • His maternal uncle was a member of the LTTE in the 1990s but left the LTTE in about 1996. • In 2005, the applicant was taken to a LTTE camp and was asked to join them. He told them that as his father was dead, he was responsible for his family, so the LTTE did not recruit him. He was released but the LTTE told him that he had to help them. • When he was a student he could travel in and out of government areas. Between 2005 and 2007, the LTTE asked him to purchase mobile phones, SIM cards and chargers for them. They also asked him to deliver parcels and packages. He was never caught by the authorities but local people would have seen him talking to known LTTE cadre. • In 2007, he and his family were displaced to a refugee camp for six months. • In 2007 or 2008, he was caught in a SLA round up and taken to a SLA camp. He was detained for two days, beaten and forced to "confess his involvement" with the LTTE. He was released without charge. • In 2008, he was caught in another SLA round up and held for one day. He was fingerprinted and beaten. He was released without charge but told not leave [sic] his village without permission. • In 2009, a Sinhalese doctor was murdered at a nearby hospital. The applicant and other young Tamil men were arrested by the police, interrogated and beaten. He was released without charge the next day. • He completed his high school studies and began studying a Diploma of Civil Engineering. In 2011, he was offered a job with an electrical wholesaler but needed to provide documents including a police character check. The local police refused to give him the character check and told him that everyone in his village was linked to the LTTE. The job offer was withdrawn. • In January 2012, he was employed as a technical assistant with the local council. His duties included supervising contractors working on construction tasks in the local area. • In July 2012, he discovered that a contractor was using sub-standard materials and was giving other building materials to the local SLA camp. The applicant confronted the contractor's site supervisor and told him to stop doing this. • The next day, a Friday, the SLA came to the site and threatened the applicant to stop interfering. The applicant went to the council and reported the incidents. The council called the contractor and confronted him with the allegations. The council also suspended work at the site. • That night, the contractor called the applicant at his home and threatened him. The contractor said that he knew about the applicant's involvement with the LTTE and would tell the authorities. As it was Friday night, the applicant could not tell the council about the call. • The applicant attended college on Saturday and Sunday. When he came home on Sunday night, his mother told him that two men from the Criminal Investigation Division (CID) had visited the house and asked for the applicant. The applicant was scared and went to stay with an uncle in Badulla. • While he was in Badulla, the CID came to the family house again. The applicant's uncle the arranged for the applicant to flee Sri Lanka. 10 The appellant claims to fear harm from the Sri Lankan Army (SLA) and the government on the basis of his imputed support for the Liberation Tigers of Tamil Eelam (LTTE), his actions reporting corruption, his profile as a young Tamil male and a Tamil Hindu from the East of the country, and his status as a returned asylum seeker who fled Sri Lanka illegally. The Authority set out the appellant's claims as to why he would be imputed to support the LTTE in A[8] (extracted above). 11 The Authority then undertook its assessment of whether the appellant satisfies the refugee assessment found in s 5H(1) of the Act from A[9] onwards. The Authority detailed all the evidence of the appellant, country information, and evidence from the Minister, including the appellant's initial entry interview, statements made in support of his SHEV application, and interview with the Delegate on 7 October 2016 that it took into account when determining the refugee assessment. 12 From A[13]-A[23], the Authority considered the appellant's claim that he feared harm due to his imputed association with the LTTE. In doing so, the Authority considered country information including a United Kingdom Home Office report titled "Country Information and Guidance. Sri Lanka: Tamil Separatism Version 2.0", 19 May 2016 (UKHO Report). 13 The Authority made the following observation at A[19] which is relevant to the second of the appellant's grounds of appeal: The applicant claims that after his family was displaced in 2007, he was taken with "many other boys" to a SLA camp and beaten. He claims that he was kept for two days and forced "to confess LTTE involvement." There is no other information in the referred materials about this confession, such as whether it related to a general involvement with the LTTE or to the more detailed activities the applicant actually undertook (purchasing phones and equipment as well as delivering parcels). I take into account that the applicant was released after making this "confession" and was not charged or subject to reporting or monitoring requirements. He has not claimed that the authorities have ever approached him since 2007 in relation to this "confession". I also take into account that he was detained by the SLA during another round up approximately 12 months later and although he was fingerprinted, he was not questioned about his "confession" and was again released without charge or follow up. He was then interrogated in 2009, in relation to the murder of a Singhalese doctor, but his evidence to the delegate is that all of the young Tamil men near the hospital were taken in for questioning. The applicant was released shortly after and again not subject to any reporting or monitoring. Considering all of this evidence, I am not satisfied that the applicant's confession was to anything other than a general or non-specific involvement with the LTTE. I am satisfied that the applicant did not have any other profile with the authorities as a result of his involvement with the LTTE or because of his forced confession. (Emphasis added.) 14 The Authority ultimately found that, after considering all of the evidence, the appellant is, at most, a person of "low-level investigative interest whom the CID wished to speak with". Whilst accepting that the authorities may still wish to speak with him, the Authority found that there was no evidence to indicate that he would face a real chance of serious harm should the authorities visit and question him: A[23]. 15 From A[24]-A[30], the Authority considered the evidence relating to any threats from the SLA or other police investigations and interactions. In doing so, it considered the events referred to above at [9], including his dealings with the authorities in relation to the contractor. The Authority accepted the appellant's version of events and found his evidence credible, but was not satisfied that the appellant faced a real chance of serious harm from the SLA. Nor was the Authority satisfied that the appellant would have an adverse profile with the police. 16 The Authority then turned to consider the appellant's profile as a young Tamil male and a Tamil from the East of Sri Lanka: A[31]-A[37]. Considering the information in the UKHO Report and DFAT country information (DFAT Country Information Report - Sri Lanka, 18 December 2015) (the DFAT Report), the Authority concluded that the appellant would not be imputed to have "any links to or association with the LTTE as a result of his or his family's activities". While he may be questioned upon his return in relation to the contractor's allegations, the Authority determined that he would not face a real chance of serious harm if questioning did occur. The Authority was satisfied that the appellant did not face a real chance of serious harm on the basis of being a Tamil, a young Tamil male, a Tamil from the East or a Hindu. 17 Finally, the Authority considered the appellant's risk as an illegal emigrant and returned asylum seeker: A[38]-[45]. The Authority was satisfied that the appellant had departed Sri Lanka illegally and that there was a possibility that the Sri Lankan authorities would be aware that he sought asylum in Australia. Citing country information, including the DFAT Report, the Authority found that, while the appellant may be detained and questioned at the airport upon his return to Sri Lanka, he did not face a real chance of harm as a returning asylum seeker: A[40]. 18 The Authority did find, however, that the appellant would likely be charged and detained upon return for his breach of the Immigrants and Emigrants Act 1949 (Sri Lanka) (I&E Act). The DFAT Report cited by the Authority indicates that a returned illegal departee may face penalties of up to five years imprisonment and a fine of up to Rs.200000 (approximately AUD$2000). Some illegal departees are arrested and charged upon return and are held in custody until they can be brought before a magistrate (usually only a short period such as 24 hours). If the returnee pleads guilty, they are likely released with a fine. If a not-guilty plea is entered, the returnee will be granted bail on a personal surety: A[41]. 19 The Authority concluded at A[46] that the appellant did not satisfy the refugee criterion in s 5H(1) of the Act, nor did it accept that there was a real risk that the appellant would suffer significant harm, thereby enlivening Australia's complementary protection obligations: A[53]-[54]. 20 As such, the Authority affirmed the Delegate's decision not to grant the appellant a protection visa.

Decision of the FCC 21 The appellant relied on three grounds of appeal before the primary judge, namely that the Authority: (a) failed to engage in an active, intellectual consideration of country information and/or the question of whether the applicant would face a real chance of serious harm or a real risk of significant harm during a possible brief period of detention on return to Sri Lanka; and (b) misunderstood or misapplied the law, or acted unreasonably by: (i) failing to exercise its discretion in s 473DC of the Act to get new information from the applicant; and/or (ii) failing to properly apply the real chance test or the real risk test to find that the applicant was owed protection. 22 The grounds of appeal were advanced in the same form as those before this Court, which are detailed below. Grounds 2 and 3 were considered together.

Ground 1 23 In relation to ground 1, the primary judge found that the Authority properly considered the country information and evidence of the appellant. The primary judge noted that after considering the appellant's circumstances, the country information, and assessing the appellant's chance of harm from actual or imputed LTTE associations, the Authority was not required to refer to each of the individual country information reports that were before it. As such, the appellants claim that the Authority failed to properly consider the country information was not established. 24 Ground 1 also alleged that the Authority failed to address the question of whether the appellant faced a real chance of serious harm during any short period of detention he may face as a result of returning to the country as an illegal departee. The primary judge rejected this submission, finding that the Authority carefully considered the appellant's evidence and came to the conclusion that the appellant would have a low profile upon his return and not be of interest to the Sri Lankan authorities. Further, the Authority had accepted country information in the DFAT report that stated the majority of returnees face a low risk of torture and mistreatment upon return. As such, ground 1 was not made out.

Grounds 2 and 3 25 Particular (a) of grounds 2 and 3 asserted that the Authority acted unreasonably in failing to obtain new information in relation to whether the appellant identified specific or general involvement when forced to confess to LTTE involvement. 26 The appellant further submitted that it was not legally reasonable for the Authority to determine the appellant's confession was to general involvement with the LTTE without making inquiries into the nature of that confession. 27 The primary judge found that the Authority did not act unreasonably in refusing to exercise its discretion to request new information. Instead, it was for the appellant to provide sufficient information to show he met the protection visa criteria. The primary judge also found that the issue of LTTE involvement was not a new issue that arose before the Authority, and therefore any information gap was a result of an absence of detail in the appellant's case. 28 Particular (b) of grounds 2 and 3 asserted that the Authority misunderstood or misapplied the real chance and real risk tests, or made a decision that was unreasonable in finding that the appellant did not meet either of those tests. 29 The primary judge rejected these grounds, stating that the Authority provided an evident and intelligible justification for its findings on the real chance or real risk tests, and that the decision cannot be said to be unreasonable. 30 The application for judicial review was therefore dismissed.

The Appeal 31 The notice of appeal before this Court relies on two grounds: 1. The Federal Circuit and Family Court at first instance erred in not finding that the Second Respondent ("the Authority") fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact. Particulars a) The Authority failed to consider with an actual intellectual engagement the material before it relating to the abuse of human rights in Sri Lanka, including torture. That material included submissions and reports from various independent sources (including material cited or quoted in the Court Book ("CB") at first instance (CB 163-177; 193; 199-200; 203-204 and note 16; 207-211; 266, [11]; 267, [13]; 303-305). b) Further or in the alternative to Particular (a) to this Ground, the Authority failed to consider with an actual intellectual engagement the question whether the Applicant had a real chance of suffering serious or significant harm while in detention on his return as an illegal emigrant, when this was a question squarely raised by the material before it, including the material before it relating to the abuse of human rights in Sri Lanka, including torture. The Applicant refers to the material cited in Particular (a) to this Ground. 2. The Federal Circuit and Family Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it misunderstood the law or erred in interpreting or applying the law. Particulars a) The Authority erred in not seeking new information under section 473DC of the Migration Act 1958 ("the Act") about an informational gap noted by the Authority, namely that the Applicant said, and the Authority accepted, that he had been forced to confess to L TTE involvement, but the Authority observed that there was no information about whether this was confession to general involvement or specific activities. (CB 266, [11]; 319, Decision, [19]) b) The Authority erred in interpreting or applying the term "real chance" of persecution in section 5J(1 )(b) of the Act and "real risk" of significant harm in section 36(2)(aa) of the Act, shown by its findings that the Applicant did not have such a real chance or risk of harm. (CB 319-327, Decision [19], [21], [23], [28], [29], [40], [41], [43], [45]-[4 [54]) 5. 32 As noted above, these grounds mirror those raised before the primary judge (excluding ground 3, which was not raised in this Court).

Ground 1 33 Ground 1 contains two particulars, each alleging a failure to consider by the Authority.

Particular (a) 34 The first particular argues that the Authority failed to consider material relating to the abuse of human rights in Sri Lanka, including torture. The appellant points to various material that was before the Authority, including submissions and country information. The appellant refers to this information at length in his written submissions, citing examples such as the UKHO Report. 35 The appellant submits that the country information before the Authority showed that, even after the end of the war, there was a culture of torture and abuse by the police and other authorities, especially directed at people in custody. However, the Authority found that "the situation had significantly improved and continues to do so" and that "the country information before me indicates that returned asylum seekers and those with an otherwise low profile are not generally at risk of harm on return to Sri Lanka": A[35], A[40]. 36 The appellant submits that these findings indicate the Authority failed to properly engage with the material before it, and that the primary judge erred in finding otherwise. 37 The Minister notes, as the primary judge had noted, that much of the country information relied on by the appellant related to acts of torture being perpetrated against perceived anti-government or pro-LTTE citizens. As the Authority found that the appellant did not have the profile of an LTTE supporter, the Minister submits that it was unnecessary for the Authority to refer to each item of country information that related to individuals with a real or perceived LTTE connection: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [47] (per French, Sackville and Hely JJ). 38 In coming to this finding, the Authority considered country information, such as the UKHO Report, the DFAT Report, and a UNHCR report titled "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka" (21 December 2012, UNB0193EA8, p 27) (UNHCR Report): A[16]-[17], [33]-[35]. The Authority was not required, the Minister submits, to set out its reasons for rejecting each item of country information: "The [Authority] must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence": Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48] (per Besanko, Barker and Bromwich JJ). 39 The Minister also submits that, as the primary judge found at [26], there was a lack of country information relied upon by the appellant that referred to those in custody in Sri Lanka who did not have a pro-LTTE profile and no country information which expressly related to those in custody as a result of the I&E Act. The Minister states that the Authority considered the country information which had been placed before it, and any material that it did not refer to expressly was material it deemed irrelevant. 40 I find that the challenge under particular (a) of ground 1 does not succeed. The Authority considered whether or not the appellant would have a pro-LTTE profile with the Sri Lankan authorities, and determined that there was no evidence that he did: A[17]-[19]. The Authority was not required, therefore, to consider every piece of country information relating to individuals who are deemed to be pro-LTTE by the Sri Lankan authorities. It is clear from the Authority's reasons that it carefully considered the country information that the appellant had relied on, referencing it consistently throughout its reasons. 41 The Authority's decision did not stray into the territory of legal unreasonableness, and the Court cannot make a finding that, based on the country information in issue, the Authority should have made a different decision. This would amount to impermissible merits review. It is clear from the Authority's reasons that the country information was adequately grappled with and applied as it related to the appellant.

Particular (b) 42 The second particular alleges that the Authority failed to adequately consider with an actual intellectual engagement the question of whether the appellant would face a real chance of suffering persecution or significant harm (by torture or other serious or significant harm) while in detention, or otherwise under the control of the Sri Lankan authorities, upon his return to the country. 43 The appellant submitted that this question was squarely raised by his evidence, submissions, and the findings of the Authority. The appellant pointed to various aspects of his history that the Authority accepted which related to his perceived involvement with the LTTE. This included the corrupt contractor allegation referred to above at [9]. Furthermore, the appellant submits that, despite making a finding that the appellant would likely be detained at the airport upon return to Sri Lanka, the Authority failed to properly consider the evidence as to the any subsequent detention. If the Authority had properly considered that country information, the appellant submits it may have found that there was a real chance of suffering serious harm in detention on return, even if in prison for only a short time. 44 The Minister rejects this submission, submitting that the Authority had carefully considered the appellant's history and evidence as to his LTTE profile, and made a finding that he would not be of interest to the authorities. In addition, the Minister points to the primary judge's finding at [33] which stated: Despite accepting the applicant's account of past events, the Authority formed the view that the applicant would have a low profile and would not be of interest to the Sri Lankan authorities. This finding, coupled with the Authority's acceptance of information in the DFAT report that the majority of returnees face a low risk of torture and mistreatment upon return to Sri Lanka and that the applicant would not otherwise face treatment that could be considered to comprise serious harm or which falls within the definition of significant harm, amounts to an active intellectual consideration of the question of whether the applicant would face harm while in detention for having breached the Immigrants and Emigrants Act. 45 As I found in relation to particular (a), the Authority has clearly engaged with the material placed before it by the appellant. After finding that the appellant would have a low profile with the Sri Lankan authorities due to his minimal pro-LTTE involvement, it was open to the Authority to find there would not be a risk of serious harm to the appellant.

Ground 2 46 Ground 2 also contains two separate particulars advanced by the appellant.

Particular (a) 47 This particular alleges that the Authority erred in failing to seek new information from the appellant under s 473DC of the Act about an informational gap which the appellant submits was noted by the Authority at A[19] (extracted above): whether the appellant's confession to LTTE involvement was to general involvement or specific activities. The appellant submits that the Authority ought to have sought information as to whether his previous forced confession was to general involvement with the LTTE or to specific activities. 48 The appellant contends that if he had confessed to specific pro-LTTE activities, the Authority may have considered his risk of future harm upon return to Sri Lanka to be greater. Additionally, if he had confessed to general LTTE involvement, the Authority may have found that later allegations of specific LTTE activity would expose him to further risk of harm. 49 The appellant submits the informational gap in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [13]-[17] (per Kiefel CJ, Bell, Gageler and Keane JJ) is analogous to the present case. The appellant submits that the Authority's failure to seek further information is a failure to make an obvious enquiry about a "critical fact, the existence of which is easily ascertained": see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). As the plurality in SZIAI observed at [25], such a failure, can, in some circumstances, give rise to jurisdictional error by constructive failure to exercise jurisdiction because "[i]t may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error". 50 In oral submissions, the appellant's counsel accepted that there is no general duty on the Authority to seek new information, but the power under s 473DC should be exercised reasonably to obtain new information when required. 51 The Minister submits that the appellant's reliance on ABT17 is misconceived, noting that the "informational gap" in that case was used by the High Court to describe a gap in the information that was before the Authority as compared to the information before the delegate. In ABT17, the informational gap arose in relation to the Authority's ability to assess the appellant's credibility. The Authority had only an audio recording of the applicant's interview with the delegate and was not able to observe the applicant's demeanour during the interview, which had the potential to impact on the Authority's assessment of the account given by the applicant. In the present matter, the informational gap is, as the primary judge put it at [49], "simply an informational gap in the [appellant's] own case that came about from an absence of detail in his claim regarding his confession". 52 Further, the Minister submits that the Authority did not act unreasonably by failing to exercise its discretion under s 473DC to "fill gaps" in the appellant's case and advise him that what he had provided was inadequate. There is no duty on the Authority to assist the appellant to make a fuller or better case by informing them that the information provided was inadequate and asking for further information; FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1630 at [45](per Farrell J). It was a matter for the appellant to present his case with the sufficient evidence to support his claim for protection. 53 There is nothing in this case to suggest that the appellant did not have an adequate opportunity to advance any evidence or submissions he wanted in support of his claim; DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [71] (per Collier, Middleton and Rangiah JJ). 54 The Minister submits that the appellant's reliance on SZIAI in a review under Pt 7AA of the Act was misplaced. However, even if SZIAI applied, the Minister submitted that there was no unreasonableness in this case. The alleged inquiry was not particularly obvious (in circumstances where the appellant himself had not given the information) and was not about a critical fact. It was just one fact among many that needed to be determined as part of the Authority's evaluative decision-making process. 55 I do not consider the Authority had a duty to seek new information, nor did it err in failing to exercise its discretion under s 473DC to do so. 56 The Authority also did not err in accepting that the appellant's confession was general in nature without seeking further information to confirm this. It came to this finding based on the information presented by the appellant. The appellant was legally represented before the Authority, and was given every opportunity to present his case. 57 No jurisdictional error arises under this particular.

Particular (b) 58 Under this particular, the appellant submits that the Authority misapplied the term "real chance" in assessing whether there was a real chance of persecution for the purposes of s 5J(1)(b) of the Act, and a real chance of significant harm for the purposes of s 36(2)(aa). 59 The primary judge noted at [53] that both parties accepted that Mason CJ's explanation of the "real chance" test in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 390 was applicable in the present matter: But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen (37), per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. 60 The appellant submits that, on the basis of Mason J's formulation, a small chance of persecution or significant harm is sufficient. The appellant submits that the material that the Authority considered in relation to the abuse of human rights in Sri Lanka (and that which formed the basis of ground 1), including the entrenched culture of torture and risk to people with slender links to the LTTE, was not done in the context of a correct understanding of the term "real chance". If it had understood the term correctly, the Authority would have found that the appellant did face a real (albeit small) chance of serious or significant harm upon his return to Sri Lanka. 61 The Minister rejected the appellant's submissions in relation to this ground, submitting this was nothing but a "thinly disguised attempt at merits review". According to the Minister, the Authority understood the term "real chance" correctly and repeatedly referred to the correct test throughout its reasons, citing examples at [10], [23], [28], [35]-[37], [45], [47] and [49]-[53]. 62 The Minister submitted that it was open to the Authority to determine the appellant's claims in relation to the real chance test in the way it did, and did not err in finding that the appellant did not meet this test. 63 The Authority clearly understood the term "real chance" in the manner explained by Mason CJ in Chan, and correctly applied that test in finding that the appellant did not face a real chance of serious or significant harm upon his return to Sri Lanka. This finding was based on the evidence the appellant himself put before the Authority, including the country information and material on human rights abuses. It was also based on the material which the Authority determined showed that the appellant would have a low profile with the Sri Lankan authorities upon his return and would therefore not face a real risk of serious harm. This conclusion was open to the Authority, and it provided adequate justification of that conclusion in its reasons. Any re-evaluation of the evidence before the Authority would cause this Court to stray into impermissible merits review. 64 I consider that the primary judge was correct in concluding that there was no error made by the Authority in relation to the real chance test as alleged by the appellant. 65 This particular of ground 2 therefore does not succeed.

CONCLUSION 66 As I have found neither ground of appeal is successful, the appeal must be dismissed. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe.