CTS15 v Minister for Immigration and Border Protection

The Appellant's Claim for Protection 3 The appellant is a national of Sri Lanka and she is of Tamil ethnicity and Hindu religion. She was born in Jaffna. On 24 January 2012, the appellant was granted a subclass 679 (Sponsored Family Visitor, Short Stay) visa for the purpose of assisting her Australian citizen sister with recently born premature twins. The appellant entered Australia on 5 February 2012. On 11 April 2012, she made an application for a Protection visa. On 17 September 2012, a delegate of the Minister refused the appellant's application for a Protection visa. On or about 16 October 2012, the appellant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for a review of that decision. On 15 September 2013, the Tribunal affirmed the delegate's decision. The appellant sought judicial review of that decision. On 7 May 2014, and by consent, the Federal Circuit Court directed the Tribunal to determine the application for review according to law. A second Tribunal considered the matter and affirmed the decision not to grant the appellant a Protection visa. 4 In support of her application for a Protection visa, the appellant claimed the following: (1) She is a "Jaffna Tamil by ethnicity" and a Hindu by religion. (2) In 2000, she was returning from school when there was a suicide bombing near her house. Three army soldiers were killed. The army retaliated and, in the course of doing so, rounded up approximately 50 young people and the girls in the group, including the appellant, were forced to kneel down naked for 2 to 3 hours. (3) The Liberation Tigers of Tamil Eelam (LTTE) wanted the appellant to join its movement. Her parents stopped her from going to school for some time thereafter. (4) The appellant had a classmate by the name of Gowry. In 2002, the LTTE were looking to recruit young people. The appellant's parents were frightened and they took her to Colombo in 2003. (5) The appellant maintained contact with Gowry. The appellant's mother passed away and thereafter, the appellant's father encouraged her to marry. Gowry asked her to travel to Jaffna and Gowry introduced her to a prospective husband, X. The marriage was approved. (6) On 16 October 2011, the Sri Lankan army came to the appellant's house and took her to their camp. The army told her that they had received information that she was in the LTTE. The appellant denied that. The appellant was sexually harassed by army soldiers during her period of detention. The appellant was released by the army, but she was told to report to it every week. The appellant returned to Colombo. She left Jaffna without informing the army. (7) The appellant fears returning to Sri Lanka as she believes that her life will be in danger as the army will suspect that she was a member of the LTTE. 5 The Tribunal held two hearings involving the appellant and her migration agent: one on 22 October 2014 and the other on 11 November 2015.

The Tribunal's Reasons 6 The Tribunal delivered a detailed decision comprising 29 pages. It is not necessary for me to discuss all of the Tribunal's reasons. It will be sufficient, in light of the grounds of appeal, for me to identify the principal reasons for the Tribunal's decision to reject the appellant's claims and then focus on the passages in the Tribunal's reasons which are under attack. 7 The Tribunal assessed the appellant's credibility unfavourably. The Tribunal said that significant aspects of the appellant's claimed experiences and circumstances in Sri Lanka raised credibility concerns which could not be overcome. The Tribunal said that the concerns were not "individually determinative of the overall credibility of the applicant's claims and evidence", however, cumulatively, they cast a level of doubt on central aspects of the appellant's claimed circumstances that the Tribunal could not be and was not satisfied that she was a person in respect of whom Australia had protection obligations. 8 The Tribunal said that it was not satisfied that the appellant had, or has, a friend named Gowry in Jaffna whom she entrusted with the task of finding her a marriage partner. It was not satisfied that the appellant's prospective husband, X, had any actual or imputed links to the LTTE. It was not satisfied that the appellant was personally suspected of being a supporter of, or having any direct involvement with, the LTTE by any arm of the Sri Lankan authorities before leaving Sri Lanka for Australia in 2012. It was not satisfied that the appellant was taken from her home in Jaffna, or anywhere else, by the Sri Lankan army or any other agency of the Sri Lankan authorities in 2011. It was not satisfied that the appellant was held overnight or for any period by the Sri Lankan army or mistreated by the Sri Lankan army or any arm of the Sri Lankan authorities in any way in 2011 as she claimed. It was not satisfied that she was harmed or mistreated, including sexually, by the Sri Lankan army or any arm of the Sri Lankan authorities in 2011 as claimed. It was not satisfied that the appellant was required to report to the Sri Lankan army or Sri Lankan authorities as claimed. 9 The Tribunal did accept that the appellant was injured in a bomb blast in Sri Lanka when she was aged around nine or ten and that she has scarring from that incident. The Tribunal also accepted that she was part of a group rounded up by the army in around 2000 during which she, together with other girls, were made to kneel down naked for several hours. The Tribunal found that the appellant was not "individually targeted for harm" in the bomb blast or in the actions of the army in 2000. 10 The Tribunal found that the appellant's Tamil ethnicity with links to Jaffna did not give rise to a chance of serious or significant harm to the appellant in Sri Lanka in the reasonably foreseeable future. The Tribunal was not satisfied that the appellant faced a real chance of serious or significant harm or both in Sri Lanka in connection with her Hindu religion. The Tribunal was not satisfied that the appellant faced a real chance of serious or significant harm in Sri Lanka in connection with the scarring on her body in the reasonably foreseeable future. 11 The Tribunal said that it was not satisfied that the appellant would be imputed with political opinions linking her to the LTTE or to opposition to the Sri Lankan government on her return to Sri Lanka in the reasonably foreseeable future because she has travelled to Australia, lived in Australia and sought asylum in Australia. 12 The Tribunal accepted that the appellant if returned to Sri Lanka would do so involuntarily and may be known or suspected by the Sri Lankan authorities to be a forced returnee from Australia who sought asylum in Australia. The Tribunal found that she would be subject to standardised procedures which apply to all returnees, but it was not satisfied that such standardised procedures would reveal her to have a profile of adverse interest to the Sri Lankan authorities, or that being known or suspected to be an involuntarily returned Tamil failed asylum seeker would give rise to differential treatment for a Convention reason. The Tribunal was not satisfied that the appellant faced a real chance of being charged, detained or jailed under the PTA in Sri Lanka, or the I&E Act in Sri Lanka, or any other law in Sri Lanka in the reasonably foreseeable future. The Tribunal was not satisfied that the appellant faced a real chance of serious or significant harm in Sri Lanka in connection with her female gender as claimed. Nor was it satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act. 13 I turn now to that part of the Tribunal's reasons which deal with the appellant's claim that she fears harm if returned to Sri Lanka by way of actions by the authorities under various laws of Sri Lanka. 14 The Tribunal noted that the appellant claimed that she had a genuine fear that on returning to Sri Lanka she will be charged under the immigration laws of Sri Lanka and under the PTA in Sri Lanka. She said that she feared that she will be put in prison and face significant harm by way of sexual violence and harassment and assault in prison, not only from the police, army or jail warden, but also from fellow prison inmates belonging to the Sinhala community. 15 The Tribunal noted that the appellant departed from Sri Lanka lawfully using her valid passport which remained valid until June 2016, and holding a valid visa for Australia. The Tribunal said that it was not apparent to it that the appellant had breached any of Sri Lanka's immigration and emigration laws. The appellant said in response that she will be charged because she is a Tamil Hindu and she was arrested on suspicion of LTTE links and she failed to report as required on her release. The Tribunal said that there was no reliable independent evidence that any person had been charged, arrested or seriously or significantly harmed under any of Sri Lanka's laws, including the I&E Act or the PTA for being a Hindu Tamil. As to her claim that she would be suspected of LTTE links, the Tribunal referred to its previous conclusions whereby it said that it was not satisfied that the appellant had been arrested in 2011 as claimed or that she was required to report to the Sri Lankan army as claimed. 16 The appellant also claimed that she will face criminal charges in Sri Lanka because she came to Australia and sought asylum. She claimed that the authorities in Sri Lanka do not like Tamils saying anything to western countries about being harmed by the Sri Lankan authorities. She said that she thinks that this is a breach of criminal laws in Sri Lanka. The appellant's registered migration agent submitted on her behalf that should the political opinion basis of her asylum claims be known to the authorities in Sri Lanka, the appellant will be detained by those authorities for further inquiry and charged under the PTA for defaming the Sri Lankan authorities. The appellant's registered migration agent provided written submissions after her appearance before the Tribunal on 11 November 2015. The agent referred to various parts of the PTA and submitted that, for a variety of reasons, the appellant's activities would be considered as unlawful activities. It would be suspected that the appellant's activities challenged the basic structure of Sri Lanka. The Tribunal said that the agent underlined s 157A of the PTA which prohibits directly or indirectly, inside or outside Sri Lanka, the following: support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka. 17 The appellant's agent submitted that the appellant would be charged under the PTA because she will be known to have sought asylum on the basis of her political opinion; in processing the appellant on her return to Sri Lanka her prior detention and failure to report to the Sri Lankan army in 2011 will become known; as a female Tamil from Jaffna, she will be assumed to support the LTTE and oppose the unitary Sri Lankan state; she may be physically searched which will reveal her scars, heightening suspicions regarding her LTTE involvement; and the appellant's unwillingness to learn Sinhala while living in Colombo will heighten suspicions that she is a Tamil nationalist opposed to the Sri Lankan state. 18 The Tribunal dealt with the submissions by referring to its previous conclusions to the effect that it was not satisfied that the appellant has any pre-existing profile which will come to light when she is processed on her return to Sri Lanka. The Tribunal was not satisfied that she was arrested, detained or required to report to the Sri Lankan army in 2011, or at any other time. Nor was the Tribunal satisfied that the appellant's scarring, Tamil ethnicity, links to Jaffna and/or her time in Australia, singularly or cumulatively, gave her or heightened her profile such that she faced a real chance of serious or significant harm in Sri Lanka in the reasonably foreseeable future. The Tribunal was not satisfied that the appellant's gender heightened her profile as a person supportive of the LTTE or opposed to the Sri Lanka state, or that any of these factors, including cumulatively, gave rise to a real chance of serious or significant harm for any of the reasons claimed. The Tribunal was not satisfied that the appellant's inability to speak Sinhala despite living in Colombo for approximately nine years "imputes" her with any particular political opinion or otherwise gives rise, singularly or cumulatively, to a real chance of serious or significant harm to the appellant in Sri Lanka in the reasonably foreseeable future. 19 The Tribunal then returned to the appellant's claim that she faces the risk of charge, arrest or mistreatment under the PTA, the I&E Act, and/or Sri Lanka's criminal laws more generally because she would be seen as an involuntary returnee who had unsuccessfully sought asylum in Australia and who may, therefore, be suspected of making comments critical of the Sri Lankan authorities. The Tribunal referred to a letter dated 12 November 2015 from a Sri Lankan Attorney at Law which had been submitted to it by the appellant's registered migration agent. The Tribunal set out the assertions made in that letter. 20 The Tribunal concluded that it had not seen reliable reports of involuntarily returned asylum seekers being routinely charged or jailed under the PTA, the I&E Act, or any other law in Sri Lanka in circumstances where, like the appellant, they have no specific adverse profile; they departed lawfully; they returned involuntarily; and/or they returned with or without a valid Sri Lankan passport. 21 The Tribunal said that it was not satisfied on the "totality of the evidence before it" that the appellant faced a real chance of being charged, detained or jailed under the PTA, the I&E Act or any other law in Sri Lanka in the reasonably foreseeable future for any of the reasons claimed, considered cumulatively. The Tribunal also said that it was not satisfied that the appellant had committed, or would be considered by the Sri Lankan authorities, of having committed, "any offence" against "any law".

The Decision of the Federal Circuit court 22 The appellant was represented by solicitors and counsel before the Federal Circuit Court. Her application contained three grounds, but, as I have said, only one ground was pursued at the hearing. 23 Prior to the hearing before the Federal Circuit Court, the Minister provided to the appellant's solicitors a copy of a certificate that had been issued under s 438 of the Act and copies of all the documents which were the subject of that certificate. A short time thereafter, the appellant's solicitors indicated to the Minister's solicitors that the appellant sought leave to raise a further ground of appeal which was not in her application for judicial review and that ground would allege that the Tribunal fell into jurisdictional error by reason of its failure to disclose the existence of the certificate to the appellant. The appellant served written submissions 11 days before the hearing and in those submissions advanced an argument that the failure to disclose the certificate amounted to a denial of procedural fairness and jurisdictional error on the part of the Tribunal. On the evening before the hearing, the appellant's representatives abandoned their argument based on the certificate. As a result, the legal effect of the existence and non-disclosure of the certificate was not raised at the hearing before the Federal Circuit Court and the Minister did not adduce any affidavit evidence pertaining to the certificate. The Minister claims that he would otherwise have done that. As I have said, the primary judge did not refer to the certificate in his reasons for judgment. 24 I turn now to describe in greater detail the one ground of review which was pursued before the Federal Circuit Court. The appellant contended that the Tribunal had misunderstood the submission made by the appellant's representative and had failed to engage in an "active intellectual process" to assess and consider the consequences of an important aspect of the appellant's claim. The particulars given by the appellant were that a submission had been made by her that Article 157A of the Constitution provides for an offence for any person who supports, encourages, promotes or advocates the establishment of a separate state within Sri Lanka. The Tribunal misunderstood the submission and the serious effect of violating the Constitutional provisions compared with violating an act of Parliament (i.e., the PTA). The particulars were to the effect that the Tribunal had proceeded on the basis that s 157A was a section of the PTA, whereas in fact, it was a section of the Constitution. The Tribunal, therefore, misunderstood the seriousness of breaching the relevant Article. The Tribunal failed to ask a relevant question as to the effect and consequences of a violation of a Constitutional provision and failed to consider the economic persecution which the appellant may face in Sri Lanka as a result of such a violation or perceived violation. In addition, the Tribunal had failed to consider the appellant's claim that she would be assumed to be a failed asylum seeker due to her lengthy stay in Australia and, as a result, she would be suspected as a person who defamed Sri Lanka. The particulars conclude with an assertion that the Tribunal failed to assess the significant and serious consequences the appellant would face as a result of violating Article 157A of the Constitution in light of the appellant's evidence that she has visible scars on her body and her prolonged stay in Australia which may "impute her" as a person who supports or encourages a separate state within Sri Lanka and is an LTTE supporter. 25 The appellant's counsel submitted to the Federal Circuit Court that the Tribunal had misunderstood the submission made to it in relation to the appellant's claims and had misunderstood the submissions made on 11 November 2015. 26 The primary judge said (at [31]) that counsel for the appellant had: …correctly pointed out that the Tribunal had erroneously referred to Article 157A(1) in the Tribunal's reasons as being Article 157A of the PTA, and that the Tribunal did not, in its reasons, identify that the s.157A was a section of the Constitution. 27 The appellant's counsel argued that, although the Constitution was identified in the submissions, it had not been addressed by the Tribunal. There was no reference to the Constitution in circumstances where there was an alleged fear of being charged and jailed for a contravention of the Constitution because of the appellant's imputed LLTE connections. 28 The primary judge accepted the submissions of the first respondent that the Tribunal had correctly identified the substance of the appellant's claimed fear in relation to prosecution for contraventions of the PTA and her claimed fear for contraventions of the Constitution because of her imputed LTTE links. The primary judge said that what was material was the substance of the law and the alleged contravention, and that the Tribunal had made dispositive findings that were "open in that regard" (at [33]). The primary judge said that he did not accept that the source, being the Constitution, was of itself of significance as the Tribunal understood the context of the alleged contravention and intellectually engaged with the submissions. He said that the Tribunal correctly identified the relevant provision and the erroneous reference to Article 157A as being a provision of the PTA, was not a material error. The primary judge said that it did not reflect any misunderstanding of the appellant's claims or any failure by the Tribunal to deal with the appellant's claims (at [33]). 29 The primary judge concluded by saying that the reasoning of the Tribunal reflected an active intellectual engagement with the appellant's claims and the alleged jurisdictional error had not been made out (at [34]).

The Appeal to this Court 30 In relation to the first ground of appeal, the first respondent accepts that the appellant's registered migration agent referred to Article 157A of the Constitution and he accepts that the Tribunal erroneously referred to Article 157A of the Constitution as being a provision in the PTA. However, the first respondent submitted that this did not show that the Tribunal misunderstood the appellant's reliance on, or submissions in relation to, the Constitution, or that it failed to appreciate the submissions made, one concerning the Constitution, and one concerning the PTA. 31 In my opinion, there are two interrelated answers to the appellant's submission. 32 First, although it is true that the Tribunal erroneously referred to Article 157A as a provision in the PTA, it cited the terms of Article 157A correctly and it did not restrict its consideration to the I&E Act and the PTA. The Tribunal considered the position under any law. The Tribunal said the following (at [79]): In written submissions provided to the Tribunal after the 2015 appearance, the applicant's RMA referred to various parts of the PTA and submitted that: "the Sri Lankan authorities would consider any activities supporting or perceived to be supporting the LTTE or its political objectives or Tamil nationalism challenging the status quo of Sri Lanka, as unlawful activities"; any activities suspected as challenging the basic structure of Sri Lanka would be considered as unlawful activities. The RMA underlines that section 157A of the PTA prohibits, directly or indirectly, inside or outside Sri Lanka the following: "support, espouse, promote, finance, encourage or advocate the establishment of a separate state within the territory of Sri Lanka". The submissions continue to the effect that the applicant would be likely to be charged under the PTA because: she will be known to have sought asylum on the basis of her political opinion; in processing her on her return to Sri Lanka her prior detention and failure to report to the SLA in 2011 will become known; as a female Tamil from Jaffna she will be assumed to support the LTTE and oppose the unitary Sri Lankan state; she may be physically searched which will reveal her scars, heightening suspicions regarding her LTTE involvement; the applicant's unwillingness to learn Sinhala while living in Colombo for ten years will heighten suspicions that she is a Tamil nationalist opposed to the Sri Lankan state. 33 That quote from "section 157A of the PTA" reflects the terms of Article 157A of the Constitution. The fact that the Tribunal did not restrict itself to the I&E Act and the PTA is shown by the following passages (at [85]-[86]): The above submissions and evidence must be considered in the context of all the evidence before the Tribunal, including the extensive body of evidence already considered regarding the treatment of failed asylum seekers, including involuntary returnees, in Sri Lanka. As considered and reasoned under the heading "Failed Asylum Seeker", despite there being thousands of involuntarily returned Tamil asylum seekers to Sri Lanka in recent years, many of whom departed and returned to Sri Lanka without valid passports, with international agencies paying close attention to and documenting their treatment, the Tribunal has not seen reliable reports of involuntarily returned asylum seekers being routinely charged or jailed under the PTA, the I & E Act or any other law in Sri Lanka in circumstances where, like the applicant, they: have no specific adverse profile; departed lawfully; returned involuntarily; and/or returned with or without a valid Sri Lankan passport. Based on the totality of the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of being charged, detained or jailed under the PTA the I&E Act or any other law in Sri Lanka in the reasonably foreseeable future for any of the reasons claimed, including cumulatively. The Tribunal is not satisfied on the evidence advanced that she would be required to pay bail for any reason or that she would need to provide any personal or monetary bond to be released from detention as she claims in her statutory declaration sworn on 15 October 2015, as the Tribunal is not satisfied that she has committed or that she will be considered by the Sri Lankan authorities to have committed any offence against any law, or that she will be detained or required to pay any bond for any other reason. (Emphasis added.) 34 Secondly, and I think more fundamentally, the appellant's submission fails because the Tribunal rejected the basis upon which the appellant apprehended action under the law, whether it be the Constitution or the PTA. By reference to its extensive findings rejecting the appellant's claims, the Tribunal rejected any suggestion that the appellant had a specific adverse profile. As I read the Tribunal's findings, particularly in paragraph 85, they are to the effect that she would not be of interest to the authorities. 35 The second ground is one in which the appellant seeks to agitate the allegation that the Tribunal had fallen into jurisdictional error by reason of its failure to disclose to the appellant the existence of the Minister's certificate under s 438 of the Act. This ground was not pressed by the appellant when she was represented by a solicitor and counsel before the Federal Circuit Court. 36 The appellant needs leave to raise this ground. The matters which the Court takes into account when determining whether to grant leave were identified in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19]-[20] per Griffiths and Perry JJ. The argument against leave in this case is even stronger because the point was considered and then not pressed. 37 The first respondent submitted that the appellant had offered no explanation as to why she now seeks to advance this ground in circumstances where she was represented before the Federal Circuit Court and a decision made shortly prior to the hearing before that Court not to press the argument. Furthermore, the first respondent said that a relevant consideration in terms of whether the appellant should be given leave to raise a new ground is whether the new ground could have been dealt with by calling evidence below. The first respondent submits that he would have adduced into evidence before the Federal Circuit Court the certificate and the documents covered by the certificate. He would have argued that it should not be inferred that the Tribunal acted in any way on the documents covered by the certificate. He would have argued that no practical unfairness could have resulted from non-disclosure of the certificate because the documents covered by the certificate did not materially bear upon the appellant's claims for protection, or the merits of those claims, and they contained no comment on or about the appellant's credibility. They were not relevant to the issues actually arising on the Tribunal's review application (Minister for Immigration and Border Protection v CQZ15 and Another [2017] FCAFC 194; (2017) 253 FCR 1 (CQZ15); BEG15 v Minister for Immigration and Border Protection and Another [2017] FCAFC 198; (2017) 253 FCR 36 (BEG15)). I note that on 10 May 2018, the High Court has granted special leave to appeal in these matters. I accept that the first respondent would have proceeded in the way he indicated had the point been raised in the Federal Circuit Court. 38 Finally, the first respondent submits that the proposed ground has insufficient prospects of success to warrant leave being granted because it should not be inferred that the Tribunal acted on the documents covered by the certificate and further, no practical unfairness results from the non-disclosure of the certificate, such that no jurisdictional error occurred, or relief should be refused on a discretionary basis applying CZQ15 and BEG15. The first respondent does not accept the appellant's statements in the particulars to her second ground of appeal as to what certain documents might show and what conclusions the Tribunal might have drawn from them, those documents not being in evidence. Other than to note that the Tribunal's reasons are very detailed and do not on their face contain anything that suggests reliance on the documents covered by certificate, I do not need to address the merits of the argument. 39 In my opinion, leave to raise this ground should be refused in circumstances where a deliberate decision not to press the point was made before the Federal Circuit Court, no explanation for the change of position is forthcoming, and the first respondent would have acted differently had the point been raised before the Federal Circuit Court.

Conclusion 40 The appeal should be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.