CKL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The IAA's decision 5 The appellant claimed to fear harm on the basis of his imputed political opinion, namely imputed support for the Liberation Tigers of Tamil Eelam (LTTE). He also claimed to fear harm as a returned asylum seeker but that claim plays no part in this appeal. 6 The claim to fear harm as a result of imputed LTTE support was based, in part, on a series of incidents that befell the appellant between 2005 and 2009 during the Sri Lankan civil war. He said he was arrested twice in 2005, and on one of those occasions he was beaten. He was kidnapped and tortured in November 2007 and interrogated on three occasions between December 2007 and June 2008; on the last of these he was also beaten. He was tortured by the Terrorist Investigations Department in December 2008. He was interrogated again in January 2009. The IAA accepted these claims. 7 The war ended in May 2009. The appellant said he had a peaceful time between then and June 2012. That peace ended when he was summoned to an 'army building' and interrogated about whether he had any connection with any remaining LTTE supporters. During this interrogation a gun was pointed at his temple and he was told that next time, there would be no interrogation but he would be shot. Once again, the IAA accepted these claims. 8 However the IAA then said (at para 25): The applicant does not know of, and does not claim that, since his departure in August 2012, the Sri Lankan authorities visited or questioned his family. I accept, in the absence of information to the contrary, that his family have not been questioned or contacted by the Sri Lankan authorities about the applicant since his departure in August 2012. 9 Then, under the heading 'Applicant's profile with the Sri Lankan authorities' the IAA reasoned as follows: 26. The applicant was subject to adverse attention by, and suffered harm from, the Sri Lankan authorities on a number of occasions, both in Jaffna and Colombo, during the war. The applicant was of no adverse interest to the authorities from the end of the war through to the end of 2011. He was able to obtain a passport in 2010 and travelled to and from India on his passport in 2011 without incident. 27. At the SHEV interview the applicant said he didn't know why the authorities again became interested in him in 2012. He speculated that the authorities may have thought there was a selection of LTTE among young Tamils. In the months prior to his June 2012 interrogation he said there were news reports of interviews and people who had disappeared, which was why he started to make plans to go to the UK to study in March 2012. He said neither he nor his family had any connection with the LTTE. 28. After he was questioned and received the death threat in June 2012, and before he left for India, the applicant does not claim he had any further encounters with the Sri Lankan authorities. He has not suggested the authorities were looking for him or anyone he knew was questioned about him in that time. He left Sri Lanka on 29 August 2012 through Colombo airport using his passport. The applicant is not aware of the authorities attempting to question his family about him since he left Sri Lanka. 29. On his own account of the 2012 incident it is not clear why the authorities suddenly became interested in the applicant when he had clearly been of no interest to them since the incidents in Colombo during the war years. From what he has said about their questioning and what was said during the interrogation it does not appear that they had any particular reason to have targeted him at that time. The applicant himself has not put forward any clear or persuasive reason to explain this interest. The applicant cannot be expected to explain the actions of the security authorities. However, in the absence of any discernible reason for this one-off revival of interest in him, which does not appear to be connected to any actual activities in which he engaged, knowledge that he possessed, or any relevant external events, I am not satisfied that there is a real chance that he would be of further ongoing interest in the future. This is particularly so given that there was no further attempt to contact or locate the applicant during the two months that he remained in Sri Lanka after the incident. Moreover, he does not claim that the authorities have made any inquiries about him in the almost four years that he has been outside of Sri Lanka. 30. In these circumstances I am not satisfied that the applicant was of any ongoing adverse interest to the authorities at the time of the 2012 interrogation, or at the time of his departure or subsequently. I am not satisfied that the authorities would have had any further interest in the applicant had he remained in Sri Lanka, or that he is the subject of any outstanding investigation that might cause him to be identified on return. 10 The IAA went on to consider country information to the effect that merely originating from an area that was previously controlled by the LTTE does not give rise to a need for protection, nor does the mere fact of being a Tamil. But real or perceived previous links with the LTTE or other Tamil separatist groups may give rise to protection claims. Based on a UNHCR report, the IAA set out a number of ways in which such links can arise. It noted that the authorities in Sri Lanka remain sensitive to the possible re-emergence of the LTTE and engage in intelligence activities aimed at monitoring former members and supporters of the LTTE. Incidents of torture had reduced under the Sirisena government although the risk is higher among high profile former LTTE supporters who are suspected of having committed serious crimes. The IAA accepted a submission on behalf of the appellant that it is not just real links to the LTTE that created a risk of harm, but also perceived links and noted that such people continue to face a risk of monitoring, harassment, arrest, detention and mistreatment, albeit at a reduced level (presumably compared to the pre-Sirisena government or to the period of the civil war). 11 The IAA then said: 39. However, the applicant has neither a real link nor a perceived link to the LTTE. I accept the applicant's consistent evidence that neither he nor his family had any connection with the LTTE. While I accept that the applicant has in the past been mistreated by the Sri Lankan authorities, and accused of LTTE involvement, I have found that the applicant was not of any ongoing adverse interest to the authorities following the 2012 interrogation, or at the time of his departure or subsequently. I have found that the authorities would not have had any further interest in the applicant had he remained in Sri Lanka and that he was not the subject of any outstanding investigation that might cause him to be identified on return. 40. I am satisfied that the applicant will not face a real chance of persecution from the Sri Lankan authorities due to any imputed political opinion on return to Sri Lanka now or in the reasonably foreseeable future. 12 On that basis, and on the basis of rejecting claims about fear of harm as a returned asylum seeker, the IAA found that it was not satisfied that there was a real chance that the appellant would face persecution on return to Sri Lanka. For similar reasons it found that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).

The proceedings in the Federal Circuit Court 13 Before the Federal Circuit Court the appellant sought review on the basis that the IAA had mischaracterised his claim and on the basis that it had effectively substituted the statutory test of well-founded fear of persecution with a test requiring the appellant to demonstrate that he had a particular 'profile' with the Sri Lankan authorities. The essence of the complaint appears to be that by focussing on country information which indicates when, generally, a person would be of interest to the Sri Lankan authorities, the IAA overlooked the factual claims about his own experience that the appellant had advanced and which the IAA had accepted. The appellant's submissions characterised the IAA's discussion of the country information as setting out pre-set categories of the type of person who would attract the interest of the authorities and making no attempt to reconcile the appellant's claims of actual persecution with the country information. According to the appellant, no reasonable person could accept those claims and yet find that the appellant had no real or perceived links to the LTTE. So, the appellant argued, it should be inferred that the IAA did not focus on whether the appellant had a well-founded fear of persecution, but instead applied a formulaic test of whether he fit within preconceived categories based on the country information. 14 The primary judge rejected these arguments. His Honour pointed out that persecution in the past did not necessarily mean that there was a well-founded fear of persecution in the future. The time to assess the risk was the time of the IAA's decision. His Honour quoted dicta of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [58] to the effect that while information about the persecution of people in particular groups can be relevant, it is always necessary to consider whether the individual applicant has a well-founded fear of persecution. The primary judge held (at [17]) that since the appellant's claims were framed in a way that explained past harm to him as arising from imputed support for the LTTE, it could not be said that it was unreasonable or illogical for the IAA to use the relevant country information, which indicated profiles of persons at risk of harm arising from real or perceived links to the LTTE, as 'tools in the assessment' of whether the appellant had a well-founded fear of persecution. 15 But in the end, in the primary judge's view, the IAA found that the appellant did not in fact have either real or perceived links to the LTTE. That was not simply because he did not fit a predetermined profile. It was because the IAA was not satisfied that the appellant was of adverse interest to the Sri Lankan authorities at the time of his departure in 2012 or thereafter. The IAA did not substitute the question of whether the appellant satisfied the profiles in the country information for the test of well-founded fear of persecution. The country information was but one consideration to which the IAA had regard. 16 At [23] the primary judge held: It would not have been rational or logical or reasonable for the IAA to reason that because the applicant did not fall into a particular profile, he would not face any future risk. The IAA did not, however, reason in that way. The 2012 UNHCR Guidelines were but one consideration the IAA had regard to in determining the applicant's chance of harm if he were returned to Sri Lanka. Other considerations included: a) the applicant's own evidence that: i) he had not been targeted or questioned in the two months following the incident in June 2012 (an incident for which there did not appear to be any particular reason for the targeting of the applicant); ii) he left Sri Lanka on his own passport; and iii) inquiries had not been made of or about him by the Sri Lankan authorities in the four years since his departure: CB 276 at [28]-[29] and CB 279 at [39] … (The other consideration (b) concerned certain country information which need not be set out.) 17 The primary judge therefore did not accept that the IAA did not look at the appellant's individual circumstances or that it erroneously reasoned that because he did not fall within a template profile, he was not at risk of harm. The findings that the IAA made were open on the evidence. 18 The other ground of review relevant on appeal was that the IAA made its finding that the Sri Lankan authorities had made no inquiries about the appellant after his departure from Sri Lanka without any foundation in the evidence. The primary judge set out (at [38]) the following excerpt from the transcript of the appellant's interview with the delegate: O: Has anyone else in your family had trouble since you left? A: Is it because of me? O: Yes A: Because after, I didn't inform my university, and I didn't resign either, so from my university they called my house, where is [the applicant], should we report to police? I didn't inform to anyone. O: So your family hasn't been questioned or anything about where you are? A: I don't know whether they went and asked, because I haven't told my story even to my family because they'll get scared. O: Has your brother had any problems with authorities in SL? A: For him, personally? O: Yes A: I don't know His Honour summarised this evidence as being to the effect that the appellant did not know if his family had been asked about his whereabouts by the university or the authorities. 19 The primary judge was not satisfied that the IAA had drawn an inference in the absence of evidence. His Honour referred (at [44]) to the following material that was before the IAA (italics in original): a) the applicant's response to question 45 of the SHEV application form which asks the applicant if he is in contact with relatives, and where he states: Once a week sometimes twice a week and sometimes once every two weeks. It all depends on whether the need to talk; b) in response to question 87 of the SHEV application form where the applicant was asked 'Are you aware you are the subject of a criminal investigation or have criminal charges pending against you?' he answered in the affirmative and detailed 'The CID/TID suspected I am a supporter of LTTE': CB 51. The applicant has used the 'past-tense'; c) the applicant, who was represented before the Delegate, was asked questions about any inquiries that had been made of him in Sri Lanka and the applicant was not aware of any: SHEV Transcript, page 18; d) evidence that the applicant did not have any encounters after the June 2012 incident and his departure, and the fact he travelled through the airport to leave Sri Lanka on his own passport without difficulty: CB 276 at [28]; and e) the absence of any claim or indication the Sri Lankan authorities had made any inquiries about him since leaving Sri Lanka: CB 276 at [29]. 20 While the primary judge did not consider the concepts of onus or burden of proof as being appropriate, his Honour referred to s 5AAA(2) of the Migration Act, which provides: For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person [i.e. a person owed protection obligations] and to provide sufficient evidence to establish the claim. His Honour then held (at [46]) that it was necessary for the relevant evidence to be supplied by the applicant in order that the decision maker can be affirmatively satisfied that the criteria for a particular visa are met. 21 The primary judge also noted that the appellant was represented at the interview with the delegate and was given what is commonly called a 'natural justice break' to consider whether there was anything else he wanted to put to the delegate. He did not put any information about inquiries being made of his family either after that break or in written submissions that his representative made after the interview. 22 The IAA was required to conduct its review on the papers. His Honour then concluded as follows (at [48]): In the Court's view, the finding that the applicant was not the subject of any ongoing investigation was a finding that was open to the IAA to make on the basis of the materials and information that were before it. Further, in respect of what was said at CB 276 at [25] there was an intelligible justification for the IAA to accept that, as the applicant had not claimed and was not aware that there had been any inquiries or questions asked of the applicant's family about the applicant, that there had been no inquiries or questions. It was not unreasonable or illogical for the IAA to have reasoned that if inquiries had been made, that the applicant's family would have communicated this to him even in circumstances where he had allegedly not told his family of his mistreatment, and, in circumstances where family members allegedly did not know about the applicant's mistreatment, there would have been even more reason for the applicant's family to communicate with the applicant about any such questions or inquiries had they been made. While a differently constituted IAA may have not reasoned in this way on this issue, it cannot be said that no logical or rational or reasonably minded person would not adopt the same reasoning as was adopted by the IAA: [Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611] at [135] per Crennan and Bell JJ.

Ground of appeal 1 - whether the IAA applied the wrong test 23 The first ground of appeal repeats the ground of review by which the appellant contended that the IAA applied the wrong test by assessing whether the appellant fell within one of several profiles that emerged from the country information, rather than assessing whether he had a well-founded fear of serious harm on his return to Sri Lanka. 24 In support of that ground, in this court the appellant said that the submissions made to the primary judge and summarised in his Honour's decision were repeated. The appellant only added that the IAA's finding at para 39, which is quoted at [11] above, ignores the appellant's long history, which the IAA had accepted, of incidents in which the authorities had displayed adverse interest in him, and relied on a 'largely formulaic approach'. The IAA was said not to have considered whether the appellant faced a real chance of persecution. The appellant did not identify any specific error in the primary judge's reasons; he only submitted that his Honour erred in not accepting the ground of review. 25 I do not accept this ground of appeal. The primary judge was correct to dismiss the corresponding ground of review, for the reasons he gave. The appellant's submissions fail to confront the reality that there was a basis in the country information and the material about his own circumstances for the IAA to find that, while the appellant was of interest to the authorities from 2005 to 2009, he was not of interest to them in 2012 when he left Sri Lanka. The war had ended and the regime had changed. And from the end of the war until June 2012, the appellant attracted no adverse interest from the authorities. The incident in June 2012 was found to be isolated and unexplained. The appellant left Sri Lanka freely using his own passport. 26 The IAA referred to all these matters at paras 26 to 30 of its reasons: see [9] above. They were matters concerning the appellant's specific circumstances. At para 33, the IAA correctly stated the statutory test for well-founded fear of persecution. While the IAA then also referred to the country information, when it came to apply that country information at para 39 of its reasons, it did so by reference to the appellant's particular circumstances: see [11] above. In referring there to what it had already found, the IAA was referring back to its more detailed reasoning at paras 26 to 30. 27 Counsel for the appellant submitted that after reviewing the categories of persons likely to be of interest to the authorities that emerged from the country information, and finding that the appellant did not fit into any of them, the IAA decided 'that was the end of the matter'. This is not a fair characterisation of the IAA's reasons. In fact, as the passages set out above demonstrate, it considered the appellant's circumstances and made a finding that it was not satisfied that he was of ongoing adverse interest to the authorities in 2012, and was not satisfied that they would have any further interest in him on his return. The IAA made that finding, at para 30, before it considered the categories of persons revealed by the country information. That country information simply confirmed for the IAA the correctness of its finding about the appellant's own circumstances. 28 There is nothing wrong with that approach to the question of whether a non-citizen has a well-founded fear of persecution. This ground overstates the IAA's reliance on the country information and understates the extent of its consideration of the appellant's specific circumstances in order to try to characterise the IAA's approach as erroneously formulaic. It was not. I do not uphold ground of appeal 1.

Ground of appeal 2 - whether the IAA reached a finding on no evidence 29 For reasons I gave at the hearing and need not repeat here, I granted the appellant leave to raise proposed grounds of appeal 2 and 3. 30 Ground 2 is as follows: The lower Court erred when it found Review Ground 2 failed to identify any jurisdictional error in the IAA decision [51] and stated that 'the applicant was not the subject of any ongoing investigation was a finding open to the IAA to make on the basis of the materials and information that were before it.'. Paragraph [48]. The lower Court also erred when it stated at paragraph 23 iii: 'the applicant's own evidence that: … iii inquiries had not been made of or about him by the Sri Lankan authorities in the four years since his departure CB 276 [28]- [29] and CB 279 at [39]. 31 The first part of this repeats the 'no evidence' ground with which the primary judge dealt. 32 I do not uphold this ground. In pursuing what is essentially an argument that the IAA made a finding for which there was no evidence, the appellant faces two important obstacles. The first is that the test for the absence of evidence in relation to such a ground is a stringent one. It is not enough that the court would have come to a different conclusion based on the same evidence. Nor is a mere insufficiency of evidence enough. The ground is not made out unless it is established that there was no evidence or other material to justify the finding made: see Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [118] (Bromberg J). 33 The second obstacle is that for the purposes of this ground, the reasoning in which the decision maker actually engaged does not determine the outcome. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 Mason CJ said (emphasis in original): So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. 34 Therefore, as Basten JA observed in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34], 'the "no evidence" ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached'. 35 That is the comparison the primary judge made here. The appellant submitted that the basis on which the primary judge found that the IAA's conclusion was open was not disclosed in the IAA's reasons but, as explained, that is not to the point. His Honour's own reasoning on the question, set out at [22] above was, with respect, sound. The appellant did not know whether the authorities had made inquiries about him of his family after he left Sri Lanka. That was in circumstances where he had regular contact with his family. If the authorities had come around asking about him, one would expect that his family would have told him about that. So the inference is open that they had not made inquiries of his family. That provides support for the broader inference that no inquiries had been made. That is so even if it is accepted that the appellant did not tell his family about the June 2012 incident at the army base. Either way, if the authorities had asked the appellant's family where he was, one would expect them to tell him about that. 36 If, alternatively, the alleged error is framed in terms of illogicality or irrationality as opposed to no evidence, the same result follows. The IAA's conclusion was not one which no rational or logical decision maker could reach on the same evidence: cf. Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]. The primary judge was correct so to find. 37 Counsel for the appellant submitted that since the appellant did not know whether inquiries had been made, the finding should have been that there was no evidence pointing either way and therefore that it was possible that the Sri Lankan authorities did make inquiries of the appellant's family after his departure. But the appellant's submissions in the appeal did not engage with the aspects of the primary judge's reasoning to which I have just referred (even after counsel for the Minister relied on them in oral submissions). In my view, those aspects identify sufficient basis to say that the finding was open to the IAA on the material that was before it. It is true that para 25 of the IAA's reasons, set out at [8] above, is expressed poorly, as it reads as though the IAA was accepting a submission that was not in fact put to it. But nothing turns on the manner of expression here. The substance of the paragraph is a finding that the appellant's family have not been questioned by the Sri Lankan authorities since his departure from Sri Lanka. For the reasons I have given, that finding was open. 38 As for the second part of ground 2, I accept that the appellant did not put before the delegate or the IAA any statement out of his own mouth to the effect that inquiries had not been made about him by the Sri Lankan authorities in the four years since his departure. His evidence, as far as it went, was that he did not know. The finding by the primary judge at [23(a)(iii)] was therefore incorrect. But it is an error with no consequence. It was made in the course of his Honour's discussion of the first ground of review, concerning the alleged application of the wrong test, not the separate 'no evidence' ground with which ground 2 is concerned. His Honour's reasoning in relation to ground 2 was clearly based on the premise that the appellant's evidence before the delegate, and hence before the IAA, was that he was not aware of whether inquiries had been made: see [22] above. So the error does not affect his Honour's conclusion on the 'no evidence' ground, or the order he made dismissing the application and it is the order, not the reasons for it, from which an appeal is made. The error did not deprive the appellant of the possibility of a successful outcome: see Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [37]-[38]. 39 Ground of appeal 2 is not upheld.

Ground 3 - the primary judge's error in describing the appellant's evidence 40 Ground 3 also relies on the error in [23(a)(iii)] of his Honour's reasons, but this time in relation to the finding that the IAA had applied an incorrect formulaic test about 'profiles', rather than consider the appellant's own circumstances. As I have said, [23(a)(iii)] was indeed part of his Honour's reasoning on this point. But, as with ground 2, the error goes nowhere. Even though the appellant did not give evidence that there were no inquiries made of his family after he left Sri Lanka, the IAA made a finding to that effect. The appellant's challenge to that finding has failed, for reasons I have given. So it was open to the IAA to reason from that finding to a conclusion that the appellant was unlikely to be of interest to the authorities if he were to return to Sri Lanka. For reasons I have given, the primary judge was correct to find that the IAA's reasoning was based on the appellant's own circumstances and did not betray any formulaic approach or misunderstanding of the test on the part of the IAA. The error at [23(a)(iii)] of his Honour's reasons does not undermine his Honour's reasoning on that ground. Ground 3 is not upheld.

Proposed ground 4 - finding of no explanation for renewed interest shown by authorities 41 Unlike grounds of appeal 1 and 2, this ground was not agitated before the primary judge. By it, the appellant seeks leave to challenge the following passage from para 29 of the IAA's decision: … in the absence of any discernible reason for this one-off revival of interest in him, which does not appear to be connected to any actual activities in which he engaged, knowledge that he possessed, or any relevant external events, I am not satisfied that there is a real chance that he would be of further ongoing interest in the future. 42 This refers to the incident at the army building in June 2012. The appellant wishes to argue that this finding was illogical or irrational, because there was no evidence as to why the appellant was summoned to the army building and threatened in 2012. So, it is said, the IAA could not logically find that the renewed interest was not connected to anything he did or any knowledge he had or any external events. 43 The explanation given for why this point was not put to the primary judge at least had the virtue of being frank: the appellant had a change of representation between then and the appeal and the point is one that occurred to his new legal team. While that is not an uncommon situation, it is hardly a compelling reason why it would be in the interests of justice to permit the appellant to raise the point for the first time on appeal. At first instance the appellant was represented by counsel experienced in migration law and there is much to be said for the proposition that he should be held to the forensic judgments which his counsel made, or can be taken to have made. 44 In those circumstances, while I heard full argument on the merits of the proposed new ground, I do not consider that it would be appropriate to go into those merits in detail before deciding whether to grant leave to raise this new ground. It is not necessary to do so in order to conclude that the point has little if any merit. One only has to look at the impugned passage in the context of the decision as a whole to see that it had an evident logical justification: see [9] above. The appellant could not explain the Sri Lankan authorities' apparent renewed interest in him. The materials did not disclose any activities in which the appellant engaged, any knowledge he had nor any external event which was capable of explaining that interest. So as the IAA said, there was no discernible reason for that new interest. The IAA then reasoned that the incident, being unexplained, did not provide adequate grounds for satisfaction that there was a real chance that the appellant would be of ongoing interest in the future. If it was unknown why the interest of the authorities revived at that particular time in June 2012, it was not possible to say on the basis of the incident that there was a risk that it would revive again, especially since the authorities had otherwise made no inquiries of the appellant or his family since 2009. No illogicality appears on the face of that reasoning. 45 In circumstances where the point has little apparent merit and the explanation given for not raising it before the primary judge is unsatisfactory, it would not be in the interests of the administration of justice to grant leave to the appellant to raise the point for the first time on appeal. Leave to do so is denied.

Conclusion 46 The appeal will be dismissed. There is no reason why costs should not follow the event. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.