CJH16 v Minister for Immigration and Border Protection

Overview 2 The appellant is from Sri Lanka. He arrived in Australia by boat on 17 August 2012 as an undocumented unauthorised maritime arrival (UMA). On 15 January 2013, he was granted a temporary humanitarian visa and a bridging visa and was released from immigration detention. On 16 August 2013, he attempted to apply for a Protection (class XA) visa. His application was deemed invalid because of the bar on such applications being made onshore by someone who is a UMA. On 20 August 2015, the appellant was informed that the bar to him applying for a protection visa under s 46A of the Migration Act 1958 (Cth) was lifted, enabling him to apply for a SHEV, which he was invited to do. On 25 September 2015, he made a valid application for a SHEV. 3 On 27 March 2016, the appellant attended an interview in relation to his application. On 16 June 2016, the delegate refused the grant of the SHEV. 4 The Authority conducts reviews of protection visa refusals in relation to "fast track" applicants as defined in s 5(1) of the Migration Act, being protection visa applicants who arrived by boat after 13 August 2012 and before 1 January 2014. The Authority does not have the power to grant protection visas, and can only either affirm the delegate's decision or refer the case back to the Minister's Department for further consideration, for example, after making a finding that the applicant was a refugee. The Authority's review process is ordinarily confined to the material that was before the delegate and is conducted on those papers. There is limited provision for new material to be taken into consideration. 5 On 29 July 2016, the Authority affirmed the delegate's decision. 6 On 25 August 2016, the appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision. On 20 January 2017, that application was replaced by an amended application containing six grounds of review, four of which were pressed at a hearing before the primary judge on 12 July 2017. The appellant was represented by counsel. 7 On 13 October 2017, the primary judge dismissed the appellant's application for judicial review. Only one of the four grounds of review is pressed on appeal. It is therefore convenient, apart from overall background, to confine consideration of the primary judge's decision to that ground of review and appeal. 8 The appellant's claims for the grant of a SHEV were based on asserted fears of harm on the basis of: his Tamil ethnicity; his imputed political opinion and being suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE); his membership of a particular social group, comprising young Tamil males from a town in the North East of Sri Lanka; being an asylum seeker who came to Australia unlawfully without a passport; being a young Tamil male with visible scars; and, returning to Sri Lanka as a failed asylum seeker. 9 The claims of being a young Tamil male with visible scars were addressed by the Authority as follows: 8. He claims that in 1998, at the age of 16, he was detained and tortured for one day by the SLA [Sri Lankan Army] after an LTTE attack near his home. He was released when his mother took his school principal and a priest to the army camp and they persuaded the military that the applicant was a schoolboy, not a member of the Tigers. He has scars on his wrists which he claims are from being burned with cigarettes during this detention. In statutory declarations submitted with his protection visa application and later SHEV application, he stated that he was required to report to the army camp every week for two or three months after his release, and claimed that later, in 2001, when he started work, CID officers from the army camp followed him around. Asked at the SHEV interview how he knew he was being followed, he said that when he was alone "they" came and asked him for information and talked to him threateningly. … 1998 detention 51. I accept that the applicant was detained and tortured in 1998 as a sixteen year old, on suspicion of involvement with the LTTE. The applicant has consistently maintained this claim. I accept that he was released following the intervention of his mother, his school principal and a priest, who persuaded the army that the applicant was a full time school student, and was not with the LTTE. I accept that he was required to report to the army camp for two or three months following his release. I do not accept that he was followed for many years afterwards, as this claim appears inherently implausible given that the army had apparently accepted in releasing him that the applicant was not involved with the LTTE. Further, when asked at the SHEV interview how he knew he was being followed, he said that when he was alone "they" came and asked him for information and talked to him threateningly. This was, in effect, a new claim, and apparently contradicts other evidence where he claimed, for example, that he was never arrested because the authorities could never catch him or locate him when he was alone. 52. While the applicant claims that from time to time he was subsequently stopped at checkpoints, he does not claim and there is no credible evidence to suggest that he was ever subjected to any form of intensive scrutiny, interrogation, questioning or investigation which would indicate that he remained under suspicion or of concern as a person with links to the LTTE. I find that the authorities' interest in the applicant as a suspected LTTE supporter or member ended with his release in 1998, or shortly afterwards. That he was able to remain in Sri Lanka until three years after the end of the civil war without experiencing further adverse interest confirms this view. 53. I accept that the applicant has scars on his arm caused by being burned with cigarette butts during his 1998 detention. Information provided by DFAT suggests that people with scars indicating that they may have been involved in combat may face adverse attention on the basis that they are suspected to have been LTTE fighters. Other information suggest that scars indicative of past torture may arouse the same suspicions. If there is any record of the applicant's 1998 detention, I consider that the record would show that he was cleared of suspicion and released. Furthermore, the applicant was never subsequently the subject of serious accusations or suspicion of LTTE involvement, and in these circumstances I am satisfied that there is no real chance that these scars would cause him to be suspected of LTTE involvement on return. 10 The ground of review before the primary judge now effectively pressed on appeal was as follows (emphasis in original): Ground 6 The Authority fell into error when it found that the Applicant despite [sic] would not suffer any risk upon return owing to his scars (CB 322, AAT at [53]) ignored relevant considerations, asked incorrect questions or failed to ask correct questions. The Tribunal presumed that there would be records of the Applicant's previous detention. Particulars 6.1 The Authority did not address the consideration that the Applicant would be returning from being away from Sri Lanka after a period of time. 6.2 The Authority did not address the consequences to the Applicant where no records existed. 6.3 The Authority committed jurisdictional error. 11 The primary judge said on this topic, after reproducing [53] of the Authority's reasons without citations: 45. This ground is based upon the premise that the IAA assumed that there would be records of the applicant's previous detention, but did not deal with the possibility that no such records existed. That premise cannot stand in light of the IAA's actual findings. 46. First, the IAA dealt with the possibility of future harm coming to the applicant on the hypothesis, rather than the fact, that there might be records of the applicant's previous detention. Secondly, the IAA dealt with the issue on the basis that the applicant was never the subject of serious accusations or suspicion of LTTE involvement at a time when he had scars from being burnt with cigarette butts. This finding supported the IAA's conclusion regardless of whether there were, or were not, records of his prior detention. For that reason, the premise of the argument is flawed and the argument must be rejected. 12 The sole ground of appeal in the notice of appeal was: The Federal Circuit Court Judge made a legal error when he dismissed my proceedings. The Judge did not consider all of the grounds that was raised and failed to afford me procedural fairness. a. More details to be provided once filed. 13 The appellant's written submissions, prepared by the solicitor who appeared for him at the hearing of the appeal, stated a new "ground 2" of appeal, being: The Federal Circuit Court erred in finding that the Authority did not commit jurisdictional error by asking the incorrect question in relation to the appellant's scars. 14 The Minister, in his written submissions, accepted that this ground of appeal would raise the same issue as ground 6 before the primary judge and, accordingly, did not oppose leave being granted to amend the notice of appeal to reflect that ground of appeal. Leave was sought and granted to that effect at the hearing of the appeal. 15 The written submissions for the appellant referred to well-established authority as to the requirement to assess the real chance that an applicant has a well-founded fear of persecution, citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 397-8 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293 (see also Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220 at [60]-[67]). Seeking to apply that authority, the appellant asserted that in this case, there was a doubt as to whether any record existed that would reflect the appellant being cleared of having links to the LTTE and that an erroneous assumption had been made by the Authority that any such record would contain details of the reasons why he had been released. It was therefore asserted that the Authority was in error in not considering the possibility that: (1) either there was no record of the appellant's detention; or (2) that if there was such a record, it would state that the appellant had been released for a particular reason. 16 It was argued that the Authority was entitled to draw inferences, but was not entitled to engage in speculation, guesswork or mere adverse assumption, and could not arbitrarily select one possibility over others, citing Tisdall v Webber [2011] FCAFC 76; 193 FCR 260 at [128] and Re Abayneh Abebe Woudneh v Rodney Inder and Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 583 at 21. It should be observed that the Full Court in Rajalingam at [60] said: It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. 17 The appellant submitted that he had argued before the primary judge that the Authority had failed to consider the alternative possibility of the harm that he may face if there was no record of his detention and therefore no proof that he was cleared of having LTTE links. Instead, his Honour had said as part of [46] that "the [Authority] dealt with the issue on the basis that the applicant was never the subject of serious accusations or suspicion of LTTE involvement at a time when he had scars from being burnt with cigarette butts". It was asserted that his Honour had thereby erred in failing to discern that the Authority's reasons for rejecting the risk of future harm were flawed upon the basis summarised above. The appellant highlighted the fact that the Authority had noted at [53] that country information suggested people with scars may face adverse attention on the basis that they are suspected of being LTTE fighters. Thus, it was reasoned, as a failed asylum seeker and someone who departed Sri Lanka illegally, the appellant would be detained upon his return and subjected to interrogation. 18 The appellant's submissions on appeal were to the effect that it was certain that the appellant's scars would be revealed and, if there was no record explicitly disclosing that he did not have links to the LTTE, he may attract adverse attention. Therefore, it was argued, the Authority had failed to consider the risk of harm to the appellant, not just as a failed asylum seeker and illegal departee, but as someone who potentially had unexplained scars, because the Authority had assumed that there would be a record of previous detention and any related records. By reason of that failure, it was asserted, the Authority committed jurisdictional error by relying on an unjustified assumption, and therefore failed to consider the alternative possibility of the appellant facing a real chance of harm. It was submitted that the primary judge erred in failing to find that jurisdictional error. 19 The Minister submitted that the appellant's sole ground of appeal was based on a flawed factual premise, as, contrary to the appellant's assertions, the Authority had not assumed that a record of his detention in 1998 existed and did not fail to deal with the possibility that no such record existed. The Minister submitted that, rather, the Authority had found that: (1) if such a record existed, it would show that the appellant had been cleared by Sri Lankan authorities of any suspicion prior to being released; and, (2) irrespective of whether any such record existed, the appellant was not subsequently the subject of serious accusations or suspicions of LTTE involvement at a time when he had scars from his previous detention, and he therefore did not face a real chance of serious harm if he were returned to Sri Lanka. The Minister thus submitted that the Authority had plainly considered the alternate possibility of the harm the appellant may face if there was no record of his detention. 20 The Minister also drew attention to the Authority's reasons at [73]-[74], at which it was said (footnotes omitted): 73. I accept that as a person who left Sri Lanka illegally the applicant will probably be investigated and questioned on return to Sri Lanka. This could involve an interview, contact with the police in his home area, his neighbours and family, and checking criminal and court records. However, as discussed above, I find that the applicant has no past links to the LTTE and the evidence indicates that the authorities were satisfied that this was the case prior to his departure. I find that, upon his return, if he is investigated, the authorities will quickly establish that he had no involvement with the LTTE during the conflict. While I accept that he worked for the TNA for one month in 2010 and has attended and assisted at a low level with Tamil events in Australia, as discussed above I do not consider that this would cause the applicant to have an adverse profile as a person suspected of links to the LTTE, or of being engaged in activity aimed at reviving the LTTE or undermining the unitary state of Sri Lanka. In these circumstances, I find that the applicant would not be subjected to any mistreatment on arrival back in Sri Lanka that would extend beyond routine processing or which would amount to serious harm. 74. Given the circumstances of the applicant's illegal departure from Sri Lanka and the duration of his residence in Australia, I accept that the Sri Lankan authorities may conclude that he sought protection in Australia. The country information does not support a finding that failed Tami asylum seekers are imputed with a pro-LTTE opinion, or suspected to have been involved, previously or currently, in supporting the LTTE merely because they are Tamils and have sought asylum. DFAT's most recent advice about what happens to returning asylum seekers is consistent with other information indicating that failed asylum seekers, including Tamils, are not specifically targeted for adverse attention from the Sri Lankan authorities at the time of entry unless they are suspected of having certain links with the LTTE. As noted above, some information indicates that it is only those viewed as a real threat to the unitary state, or likely to be involved in reviving the LTTE who may be at risk. While there are reports of Tamils returning to Sri Lanka, including failed asylum seekers, being detained on arrival or after returning to their villages and being subjected to mistreatment and torture, the country information makes quite clear that the key risk factor is whether a Tamil has actual or perceived links to the LTTE. There is no credible evidence before me to suggest that, apart from being briefly detained once in 1998 as a sixteen year old, the applicant was ever suspected of having links to the LTTE. I do not accept that the applicant will be imputed with pro-LTTE or anti-government dissident beliefs by the authorities because of his extended residence in a western country or because he sought asylum, because he worked for the TNA in 2010 or attended and assisted with Tamil events in Australia, because he has scars, because of his former place of residence, or for any other reason. The weight of the available independent information indicates that failed Tamil asylum seekers returning involuntarily to Sri Lanka, whose circumstances are similar to those of this applicant, do not face a real chance of mistreatment amounting to persecution for that reason. I find that the applicant does not face a real chance of persecution from Sri Lankan authorities either as a failed asylum seeker or for any other reason put forward, taking into account his Tamil ethnicity and other personal characteristics. 21 The Minister's submissions should be accepted. The Authority did, in substance and effect, consider the alternative of there being no record of the 1998 incident, and concluded that, because of the lack of any subsequent serious accusations or suspicion, whatever the status of the records, there was no real chance that the scars would cause the appellant to be suspected of LTTE involvement upon his return to Sri Lanka. There was no error, let alone jurisdictional error, on the part of the Authority. It follows that the primary judge did not err as alleged. 22 The appeal must therefore be dismissed. The appellant must pay the Minister's costs as assessed or agreed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.