DLV17 v Minister for Immigration and Border Protection

The Appellant's Claims 4 With respect to his claim for refugee status and complementary protection, the appellant claimed that he would face a real chance of serious harm, or a real risk of significant harm, on the basis of one or more of the following: a real or imputed association with the Liberation Tigers of Tamil Eelam (LTTE); being a young Tamil male from the North; being a Christian; having left Sri Lanka while on bail for a previous attempt to depart; and being a returned asylum seeker who departed Sri Lanka illegally. 5 The Authority summarised the appellant's claims as follows (the numbering is mine): (1) He is a Tamil Christian who was born and lived in a district in the Northern Province of Sri Lanka. His mother and siblings remain in this part of Sri Lanka. (2) His biological father was killed in a crossfire between government forces and the LTTE in 1988, about two weeks before the applicant was born. His mother told him later (in about 2000) that although his biological father was not in the LTTE, he had friends who were and he moved around with them. (3) His mother remarried and his stepfather was involved with the LTTE for more than 10 years. His stepfather drove and maintained vehicles and later served with a brigadier the appellant called Balraj. His stepfather was taken by the Sri Lankan Army (SLA) in 2009 and has not been seen since then. (4) The applicant's church arranged for him to do a welding course and from 2006-2009 he worked as a welder. He never did any work directly for the LTTE but his employer did do some work for it. He did whatever work his employer asked him to do. (5) In 2009, his family was taken to a Displaced Persons (DP) camp. He was called to the camp office of the Criminal Investigation Division (CID) and questioned about his association with the LTTE. This happened many times, but on three occasions he was detained and beaten. He was badly injured on the foot and still has trouble standing for long periods. (6) In 2010, he and his family were released and returned to their home village. He went to resume his welding work, but his employer had fled Sri Lanka. However, his employer's brother took over the company and gave the applicant work. (7) In 2011, he applied for and was issued a passport but he has never travelled on this document. (8) In around August 2012, people came to his house while he was at work. They asked his mother where he was and for the address of his workplace but she did not give them this address. His mother called him at work to tell him what had happened. He was scared, so he did not go home but stayed in a room at the back of the workshop for two weeks. (9) After two weeks, no one had come looking for him so he went home and met some friends to play cricket. While they were playing, two plain clothes men came up and took him to the police station. They said that his welding course had been paid for by the LTTE and he worked for the LTTE. He told them that the course was arranged by the church. A soldier slapped and assaulted him. Later, his mother and his local priest came to the police station and the priest told them that the church had arranged the course. The applicant was released. (10) The priest told the applicant that he needed to get away because he would not be safe. He went into hiding that night and then went to board a boat. (11) His boat was stopped by the Sri Lankan Navy (SLN) and he was taken to court. He was remanded in prison over the weekend before his mother and aunt bailed him out. His agent arranged for another boat and he escaped Sri Lanka on 30 September 2012. (12) His mother has sent him a letter that he says is from the CID. It is dated 12 July 2015 and instructed him to appear at the CID office in Colombo on 17 July 2015. 6 The Authority found that the appellant was not a refugee within the meaning of that term in s 5H(1) of the Migration Act 1958 (Cth) (the Act) and nor was he entitled to complementary protection within s 36(2)(aa) of the Act. 7 The grounds of appeal relate to particular aspects of the Authority's reasoning and conclusions. I will identify the Authority's reasons and conclusions relevant to particular grounds as I deal with them. 8 The grounds of the appeal to this Court reflect, by and large, the grounds in the Amended Application for Judicial Review. Most of the submissions made by the parties were made by reference to the reasons of the Authority, rather than by reference to the reasons of the primary judge.

The Grounds of appeal 9 The structure of the Notice of Appeal is that there are two grounds of appeal described as Grounds One and Three. Each ground contains a number of particulars and the arguments were advanced by the appellant by reference to issues which encapsulate the particulars in the grounds. There were five areas or matters in which it is contended by the appellant that the Authority has committed a jurisdictional error which the primary judge has failed to identify. I will describe these areas or matters as issues.

Issue 1 (Ground Three, Paragraph 1, Particulars (a) IV and VIII) and Issue 5 (Ground One, Particular ii) 10 For reasons which will become clear, it is convenient to deal with these issues and grounds together. The alleged error which is the subject of Issue 1 is described in the Notice of Appeal in the following way: 1. The second respondent (the IAA) failed to conduct its review pursuant to s 473CC of the Migration Act, according to law. Particulars (a) Failure to consider information that was before it, pursuant to s 473DB of the Migration Act and, Failure to consider submissions advanced on behalf of the applicant to the effect that; IV. Submission that by illegally departing Sri Lanka twice, with the second time being whilst the applicant was on bail for the first office [sic], the applicant is guaranteed to go to jail, where he will be subjected to degrading and inhumane treatment and torture. VIII. The country information submitted by the migration agent in relation to illegal departure, particularly paragraph 19 of CB 164. 11 The alleged error which is the subject of Issue 5 is described in the Notice of Appeal in the following way: The second respondent fell into jurisdictional error as there is (a) no evidence (b) misapprehension of evidence (c) lack of evidence to satisfy an essential statutory element. Also the second respondent fell into jurisdictional error by forming a decision that is illogical, irrational and unreasonable. Particulars: ii) At paragraph 41 the IAA concluded that leaving Sri Lanka second time while on the bail would not give rise to any more than low-level interest and that his repeat offence would not give rise to an adverse security or criminal profile. "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 (footnote 7). There is no evidence before me that indicates that the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart". 12 Before I analyse the Authority's reasons with respect to these grounds and those of the primary judge, it is convenient to identify the appellant's argument. 13 The appellant's case before the Authority was that he left Sri Lanka illegally. He did so when he was on bail for a charge concerning a previous attempt to leave Sri Lanka. His case was that he will face "increased problems" because he had absconded whilst on bail for attempting to leave Sri Lanka. The appellant relied on country information which he had submitted to the delegate and which included paragraph 19 in the CSR. Paragraph 19 is in the following terms: 19. The UK Foreign and Commonwealth Office's report extensively evaluates how "anyone who was wanted for an offence would be arrested. Those with a criminal record or LTTE connections would face additional questioning and may be detained. In general, nongovernment and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention: outstanding arrest warrant, criminal record, connection with the LTTE, illegal departure from Sri Lanka." The report also commented about how "It was possible to establish whether a person had left the country illegally by looking at the passport" and that those without proper identification would raise an "alert". "Following an alert, DIE would refer these people to CID or SIS to establish the position." This process is also confirmed in the UK Home Office Sri Lanka Bulletin: Treatment of Returns, UK Border Agency, December 2012. (emphasis in original; footnotes omitted.) 14 The appellant's argument is that the Authority had failed to give real and genuine consideration to the submissions and evidence in relation to this issue and, in this respect, he referred to, and relied upon, authorities to the effect that the decision-maker is required to do that: WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 233 FCR 534 and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51. 15 The particular matters relevant to this issue were summarised by the Authority in paragraphs (10), (11) and (12) of its summary which is set out above (at [5]). 16 The Authority addressed the appellant's claims that he would be identified on his return to Sri Lanka as having departed the country illegally and as having done so whilst on bail for an attempted illegal departure and as a failed asylum seeker under the heading in its reasons of "Illegal departure and returned asylum seeker". Of present concern is his status as a person who absconded whilst on bail. 17 The Authority made the following findings: (1) The appellant attempted to leave Sri Lanka and was intercepted by the authorities; (2) He was held on remand over the weekend and then taken before a court; (3) He was given bail, but country information from the Department of Foreign Affairs and Trade (DFAT) stated that it is rare that conditions are imposed and it is likely an accused will only need to return to court when the case is being heard or when summonsed as a witness. Furthermore, there is no general requirement to report to police or police stations between hearings. However, the Authority was prepared to accept that the appellant was released on the surety of his aunt as claimed; (4) The Authority was prepared to accept that a letter from the CID in Sri Lanka dated 12 July 2015 related to the appellant's illegal departure and that he has been called upon to report to the authorities. However, apart from this letter, he has not been contacted by the authorities. Nor has his family (including his aunt) been contacted by the authorities; (5) The Authority said that given all the information and evidence, as well as its findings in relation to the lack of any imputed LTTE profile, it was not satisfied that the appellant's previous attempt to depart Sri Lanka would give him an adverse profile with the authorities; (6) The Authority accepted that the appellant was likely to be identified as having left Sri Lanka whilst on bail for a previous immigration offence. However, it found that that was not likely to give rise to more than low-level interest. The Authority said (at [41]): 41. … I take into account that the applicant was released on bail and has not been followed up by the authorities for over four years. I also take into account that he has never claimed to have been anything other than a passenger. I am satisfied that his first illegal departure offence is a minor offence and would not give rise to any more than a low-level interest. I am therefore satisfied that leaving Sri Lanka whilst on bail for this offence would not give rise to any more than low-level interest and that his repeat offence would not give rise to an adverse security or criminal profile. 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. There is no evidence before me that indicates that the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart. I am satisfied that the applicant would not be at risk on return on the basis of any adverse security or criminal profile, including for having departed whilst on bail for a previous attempt, and I find that notwithstanding his personal profile, there is not a real chance he would be subjected to harm because he is a returning asylum seeker. (footnote omitted) (7) The Authority then turned to consider how the appellant may be treated on his return to Sri Lanka by reason of his illegal departure from Sri Lanka. Of present concern is the effect of his previous attempt to depart from Sri Lanka and the fact that he was on bail at that time. In that context, the Authority said that his attempted departure and departure whilst on bail may lead to more stringent bail conditions on a charge of departing illegally, although that would not amount to serious harm. As to the charge of illegal departure, the Authority found that a fine rather than a custodial sentence was the most likely result. It found that any short term detention would not give rise to serious harm. In the alternative, the Authority found that the Immigrants and Emigrants Act in Sri Lanka, under which the appellant would be charged, was a law of general application; and (8) As far as complementary protection was concerned, the Authority found that short term detention at the airport or in a nearby prison in relation to a charge of leaving Sri Lanka illegally would not constitute significant harm and that a custodial sentence was unlikely to follow a successful prosecution of the charge. 18 The primary judge outlined the appellant's argument. He concluded that the Authority had taken into account the appellant's submissions. He said that on the face of the Authority's reasons, the Authority had given real and genuine consideration to the appellant's claimed fear of harm, "by reason of his earlier attempted departure and being on bail". His Honour concluded that there had been no failure to conduct the required review or to consider the review material or to give genuine realistic consideration to the submissions advanced in support of Ground Three, Paragraph 1, Particulars (a) IV and VIII. 19 As the submissions were advanced at the hearing, the issue was narrowed to one of whether the Authority gave real (or proper) consideration to the country information referred to in paragraph 19 of the CSR. As far as I can see, the Authority did not expressly refer to that country information. The Authority said in the introductory section of its reasons that it had regard to the material referred to it by the Secretary under s 473CB of the Act. That material included the submission to the delegate dated 6 September 2016 and the CSR. In the course of its consideration of this issue, the Authority referred to the "country information before me" and in a footnote referred to a DFAT Report dated 24 January 2017 (at [41]). Furthermore, earlier in the same section, the Authority referred to country information (at [39]). 20 It is well-established that a decision-maker in the position of the Authority is not required to refer to every piece of country information: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. 21 Subject to a consideration of the matter raised as Issue 5, I am not prepared to infer that the Authority did not take into account the country information in paragraph 19 of the CSR. It said that it had had regard to or referred to the country information and its reasoning on the effects of the appellant having left Sri Lanka whilst on bail for a previous immigration offence was detailed. 22 Issue 5 raises a related point. It focuses on the statement in [41] of the Authority's reasons (set out above at 17]) that there was no evidence before the Authority that indicated that the appellant will be at any increased risk of arrest or detention because of his previous attempt to depart. This was not correct in light of paragraph 19 of the CSR. As I understood the way in which the appellant sought to rely on this matter was to submit that it was evidence that the Authority had indeed not taken into account paragraph 19 of the CSR. The primary judge dealt with this ground as follows (at [54]-[55]): 54. Mr Zipser submitted that the reference to "no evidence" should be read literally and that this was inconsistent with the evidence otherwise identified in the Authority's reasons. The Authority's reasons are not to be read with a keen eye for error. The reference to there being no evidence before the Authority indicates the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart, read in context, was a finding made in light of the low profile and the low level of interest in respect of a repeated offence referred to in the Authority's reasons, including the absence of a criminal profile. 55. The Authority's reasons in relation to there being no evidence before the Authority that indicates the applicant will be at any increased risk of arrest or detention because of his previous attempt to depart was a finding that was open to the Authority, open on the evidence, cannot be said to reflect a misapprehension of the evidence, and cannot be said to lack an evident and intelligible justification. Such adverse finding was reasonable and open to the Authority. No jurisdictional error, as alleged in ground (1)(ii) is made out. 23 I do not consider that it is appropriate to infer that the Authority did not take paragraph 19 into account. The Authority's reasons must be read as a whole. Not only are there references to country information to which I have previously referred, but (as the first respondent pointed out), in paragraphs that follow [41], the Authority addressed the consequences of the appellant having left Sri Lanka whilst on bail for a previous immigration offence in terms of bail conditions and punishment for illegally leaving Sri Lanka. 24 I reject the grounds I have described as Issues 1 and 5.

Issue 2 (Ground Three, Paragraph 1, Particular (a) III) 25 The alleged error which is the subject of Issue 2 is described in the Notice of Appeal in the following way: 1. The second respondent (the IAA) failed to conduct its review pursuant to s 473CC of the Migration Act, according to law. Particulars (a) Failure to consider information that was before it, pursuant to s 473DB of the Migration Act and, Failure to consider submissions advanced on behalf of the applicant to the effect that; III. Information at CB 136 para 19 stating that the officials warned the applicant to report to them whenever required and to not leave the area. 26 The particular matters relevant to this issue were summarised by the Authority in paragraphs (8) and (9) of its summary which is set out above (at [5]). 27 The information referred to in the particulars (and additional contextual information) to this ground is as follows: 16. In early August 2012, the SLA questioned the applicant's mother about the location of the applicant. The applicant's mother pretended to not know, and then informed the applicant by phone. The applicant did not return home for two weeks. 17. After two weeks the applicant returned home, thinking it was safe. Whilst playing cricket at a local playground, plain clothes officers identified and arrested the applicant. 18. The applicant was interrogated about his welding and whether he welded for the LTTE. They claimed the LTTE sponsored his welding course so he would be their spy, even though the applicant told them the church had sponsored his course. 19. At around 9pm the applicat's [sic] priest intervened and secured his release by supporting his story that the church sponsored his welding diploma. The officials warned the applicant to report to them whenever required and to not leave the area. The priest advised the applicant to leave the country. (footnotes omitted.) 28 In summary, the appellant gave evidence that officials or army officials were concerned about whether the LTTE had paid for him to do a welding course. The appellant's priest intervened, but the officials warned the appellant "to report whenever required and not to leave his area of residence without their permission". 29 The Authority was not prepared to accept many aspects of the appellant's claim which it said that it considered unconvincing. It was prepared to accept that he was called in for questioning by the authorities on one occasion and that that questioning related to the welding course. However, the Authority found that whatever interest the authorities may have had in relation to the appellant's welding course and education had ceased in or around 2012. 30 The appellant's argument is that although the Authority rejected a number of aspects of the appellant's account, it did not expressly reject, and the appellant submits must be taken to have accepted, that the appellant had been warned to report whenever required and not to leave his area of residence without permission. The Authority then failed to give real and genuine consideration to a claim that the risk or seriousness of harm to him if required to return to Sri Lanka is heightened by the fact that in departing Sri Lanka he disobeyed reporting orders from the authorities not to leave his area of residence without their permission. 31 The primary judge rejected the appellant's argument for the following reasons (at [43]): 43. … There is no basis in the circumstances of the present case to infer that the Authority failed to have regard to the applicant's evidence or submissions as alleged in ground 3(a)(iii). Further, the reference to the warning was in the context of the applicant's claimed fear of harm by reason of actual or imputed LTTE association, and the Authority clearly made dispositive findings that subsume the applicant's claim in relation to being told to stay at his village and report whenever called for. Accordingly, the Court finds that there was no failure to conduct the review required under s 473CC of the Act or to have regard to the review material pursuant to s 473DB of the Act, or failure to consider the applicant's claims and submissions as alleged in respect of ground 3(a)(iii). 32 It is not clear to me that the Authority is to be taken to have found that the appellant was told not to leave his area of residence and to report when required. In any event, the Authority provided the answer to the point when it found that the authorities had no interest in the appellant from in or around 2012. 33 I reject the ground I have described as Issue 2.

Issue 3 (Ground Three, Paragraph 1, Particular (a) VI) 34 The alleged error which is the subject of Issue 3 is described in the Notice of Appeal in the following way: 1. The second respondent (the IAA) failed to conduct its review pursuant to s 473CC of the Migration Act, according to law. Particulars (a) Failure to consider information that was before it, pursuant to s 473DB of the Migration Act and, Failure to consider submissions advanced on behalf of the applicant to the effect that; VI. That abduction, torture and sexual violence of mainly Tamils by the security forces continued after the Sirisena government was elected in 2015, with the perpetrators making no effort to hide their identities. 35 The appellant submitted that the Authority had not given real (or proper) and genuine consideration to the country information which discusses the torture and ill-treatment of mainly Tamils by the security forces and the submissions made about this topic. The appellant submitted that the issue is plainly relevant to the risk of harm to him should be he returned to Sri Lanka. 36 In the course of the appellant's submissions to this Court, the appellant referred to paragraphs 5 and 6 in the CSR. Those paragraphs are as follows: 5. The 2015 DFAT Country Report on Sri Lanka states: "In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lanka security forces, in some cases resulting in death. Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections." 6. On torture and rape, the 2014 Human Rights Watch report notes that the: "[t]orture and other ill-treatment of persons in custody by the security forces has been a widespread problem both during and since the armed conflict. The Human Rights Watch published new evidence in February that rape and sexual violence has been a key element of broader torture of suspected LTTE members and supporters ever since the war's end. The torture is used to obtain "confessions" of LTTE involvement, and to instill terror in the broader Tamil population to discourage involvement with the LTTE". "Human Rights Watch is unaware of any government investigations into the reported sexual abuse". "Sri Lanka's Prevention of Terrorism Act gives police broad powers over suspects in custody and is the law most commonly invoked by officials to justify prolonged detention without trial of security suspects. It is still in regular use. The government asserts it has made available comprehensive lists of the names of those detained under the law as well as their places of detention, but family members in 2013 reported difficulty accessing the information." (emphasis in original, footnotes omitted.) 37 The primary judge's reasons for rejecting this ground of challenge were as follows (at [45]-[46]): 45. The Authority's reasons are not to be read with a keen eye for error and should be read as a whole. Notwithstanding the skilful arguments by Mr Zipser, there is no proper basis to infer that the authority failed to take into account the applicant's claims, evidence and submissions in the circumstances of the present case. The Authority's express reasons are inconsistent with any such inference being drawn, and the detailed reasoning of the authority is consistent with having close regard to the submissions advanced on behalf of the applicant. It is not necessary for the Authority to refer to every piece of information before the authority. 46. The Authority did not fail to conduct the review required under section 473CC or to consider the review information in accordance with section 473DB, or fail to consider the submissions, claims and evidence of the applicant as alleged in ground 3(a)(vi). Further, on a fair reading of the authority's reasons as a whole, the authority gave real and genuine consideration to the applicant's submissions, claims and evidence. No jurisdictional error as alleged in relation to ground 3(a)(vi), is made out. 38 I reject the appellant's submission and this ground of challenge. First, as I have already said, it is not necessary for the Authority to refer to every piece of information in its reasons. Secondly, the information is of no, or, at best, marginal significance in light of the fact that most cases of torture and ill-treatment are likely to take place while a person is in custody and the Authority's conclusion that if the appellant was to spend any time in custody it "would likely be very brief" (at [46]).

Issue 4 (Ground Three, Paragraph 1, Particular (b)) 39 The alleged error which is the subject of Issue 4 is described in the Notice of Appeal in the following way: 1. The second respondent (the IAA) failed to conduct its review pursuant to s 473CC of the Migration Act, according to law. (b) The second respondent failed to consider the applicant's claims cumulatively, despite its statement that it did so at CB 285 [49] pursuant to 32(2)(a) and 32(2)(aa) of the Migration act 1958. 40 The appellant submitted that the Authority did not assess the cumulative effect of the conclusions it contends should be drawn in relation to Issues 1, 2 and 3. This submission stands or falls having regard to the success or otherwise of the challenges in relation to those issues. That is the case because the Authority, having regard to the conclusions it reached, said that it had considered the appellant's claims cumulatively (at [49]). This ground of challenge must fail because the appellant's challenges in relation to Issues 1, 2 and 3 fail.

Conclusion 41 The appeal must be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.