DUZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THE DECISION OF THE IAA 4 The IAA identified the information provided to it by the Secretary of the Department of Immigration and Border Protection and then provided the following summary of the appellant's claims: (a) The applicant is a Tamil from [Sri Lanka]. (b) The applicant's older brother joined the LTTE and was an active volunteer member from 2000 to 2006, working as the head of intelligence for [a local district]. He was known personally by senior LTTE member, Pillayan. The Criminal Investigation Department (CID) pursued this brother because of his LTTE connections. To avoid harm from the CID this brother went to work in Saudi Arabia from 2007 to 2009. The applicant's mother paid money to an agent to facilitate his travel. (c) After the brother's departure from Sri Lanka the CID began to harass other family members, including the applicant. To avoid this harassment one of the applicant's sisters went to work in Saudi Arabia. (d) The applicant's brother returned to Sri Lanka in 2009. He was detected at the airport and was detained for questioning by Pillayan and the CID. He was held for one week and beaten during this time. After his release the CID continued to look for his brother and they harassed the applicant and his family. His father was beaten many times by the CID. (e) The applicant's brother was a witness to war crimes committed by the Sri Lanka authorities and would be able to give evidence against the authorities and this is why they are pursuing him. (f) The applicant attended a local Catholic primary school and from 2007 he boarded at the hostel at the school for two years. The Brothers running the school and hostel were known to have links with human rights groups and the applicant's mother believed he would be safer there. (g) During the 2012 elections the applicant was approached by Pillayan who was the leader of the Tamil Makkal Viduthalai Pulikal (TMVP) to campaign for their candidate. The applicant was a member of an influential sports club and the TMVP wanted to take advantage of the club's connection with the local community. The applicant refused and was threatened by the TMVP and the CID/army. (h) The applicant's family traditionally supported the Tamil National Alliance (TNA) and the applicant spent the month before the 2012 election campaigning for their candidate. He was safe as he stayed close to the candidate who was always accompanied by bodyguards. (i) After the election the TMVP were disappointed with the election results and took retribution against TNA supporters. Pillayan, accompanied by CID officers, visited the applicant's mother and threatened harm to the applicant. (j) To avoid ongoing harassment the applicant's mother arranged for him to come to Australia in October 2012. His other siblings are also living overseas. (k) He fears that on return to Sri Lanka he will come to harm at the airport and that the CID will come to his home to interrogate him and torture and kill him. (l) He fears genocide in Sri Lanka resulting from Tamil youth being eliminated by the army. (m) He fears harm from the authorities because he is a Tamil, his brother's links with the LTTE and his involvement in the 2012 elections. He cannot obtain protection from the authorities and his fear relates to the whole of Sri Lanka. 5 The primary judge accurately noted at [5] - [8] the claims advanced by the appellant as being, in broad compass: first, due to his brother's activities as a prominent LTTE member, the appellant and his family came to the adverse attention of the Sri Lankan authorities and were harassed by them. Secondly, because of his own political activities in the 2012 elections on behalf of the Tamil National Alliance (TNA), the appellant came to the adverse attention of their rivals, the Tamil Makkal Viduthalai Pulikal (TMPV) and was variously threatened and harassed. Thirdly, as a Tamil he would face harm for that reason, on return, from the Sri Lankan authorities. Fourthly, as a failed returning asylum seeker who departed Sri Lanka illegally he would, on return, come to the adverse attention of the Sri Lankan authorities, and be harmed by them. 6 The primary judge summarised the findings of the IAA in relation to the appellant's claims at [9] of his reasons as follows: 1. Given internal inconsistencies and implausibilities [sic] in his account, and in light of country information before it, the IAA found that his brother did not have any connection to the LTTE, and the applicant and his family were therefore not targeted, as claimed. 2. The applicant was a low level TNA supporter. The IAA found that the election in 2012 was "conducted in a tense and volatile environment", and there was significant harassment by all sides of their opponents. However, given country information before it, there had been an easing of political tensions, which the IAA found meant that the applicant would not face harm on return because of his political activities. 3. The IAA accepted that as part of a Tamil family the applicant would have been subject to monitoring and harassment in the past. However, having regard to country information about conditions in Sri Lanka since 2009, he would not likely face harm as a Tamil in the future. 4. In relation to returning as a failed asylum seeker who departed illegally, the IAA found that any penalty, or any questioning, investigation, prosecution, or punishment of him, would not rise to serious or significant harm. In essence, the applicant would be faced with the application of a law of general application. The IAA also found there was no evidence before it that the applicant's status as a failed asylum seeker would bring him to the adverse attention of the authorities on return. 7 Ultimately, the IAA concluded that the appellant did not meet the requirements of either ss 36(2)(a) or (aa) of the Act.

THE DECISION OF THE FCCA 8 The appellant was represented by Mr A Kumar of counsel before the FCCA. He advanced 6 separate grounds in his application for review, but grounds 4, 5 and 6 were not pressed at the hearing. 9 In ground 1 the appellant asserted that the IAA erred by finding that supporting letters provided by the appellant contained "hearsay information". This ground directs attention to [19] of the IAA's decision, addressing two letters given in support of the appellant's application, one by a local Sri Lankan MP and the other by a local church: [19] The letter from Mr Yogeswaran refers to the applicant's brother being conscripted by the LTTE and ongoing harassment of the family from army intelligence. The letter from St Peter's Church also refers to the applicant's brother being an LTTE cadre. Neither of the writers has indicated that their understanding of the circumstances is other than from hearsay information, nor that it is has been verified by any objective and independent evidence. I give these letters no weight. 10 The primary judge observes that in this part of its reasoning, the IAA considered the appellant's claim that his brother was "conscripted" by the LTTE and the subsequent ongoing harassment of the family by the Sri Lankan authorities. He notes that the text of both letters makes plain that the authors are reliant on information from a third party, rather than coming from the knowledge of events held by the authors. Taking this into account, the primary judge accepts the submission of the Minister that the weight to be attributed to evidence adduced before the IAA is a matter for it, citing Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [197], and concludes that it was reasonably open to the IAA to assign no weight to the letters. Accordingly, ground 1 was not made out. 11 In ground 2, the appellant asserted before the FCCA that the IAA had failed to consider the appellant's claim to fear harm because of his membership of a local sports club. 12 The primary judge rejects this ground because, properly understood, the appellant made no claim to fear harm simply because of his membership of the club. Rather, his claim, as set out in his statement provided with his application for a SHEV, was that a government candidate wanted to use the appellant's connection to the famous sports club to "win votes for him". As noted by the primary judge, the real nature of this claim was that the appellant feared harm from the government candidate because of his refusal to support him in using his club affiliation to make speeches to win votes for the candidate, rather than the sports club membership per se. This claim was considered by the IAA at [37] where it said (emphasis added by the primary judge): [37] The objective evidence shows that the 2012 Provincial Council elections were fiercely contested and characterised by disruption by all parties. It is plausible that the opposition TMVP party sought to use members of the local sports group to canvass for them and that the applicant, who was a member of the group, was pressured to support the TMVP. I do not accept that Pillayan himself spoke to the applicant about this role, even if it could be said that the applicant was in some position of influence. At this time Pillayan was the Chief Minister and I consider it implausible that he was involved in managing minor administrative aspects of the election campaign. It is plausible that when the applicant refused to assist the TMVP he was then harassed by the TMVP and elements supporting them, which may have included members of the CID and army. I note that the applicant was amongst a group of nine to ten people campaigning for the TNA at the time and that he kept close to the TNA candidate and therefore had the benefit of the candidate's bodyguards to ensure his safety. I accept that after the election Pillayan may have been disappointed with the election results and his TMVP party took retribution against the opposition TNA supporters and it is plausible that the applicant and his family experienced some harassment post-election. However, the applicant was a low-level TNA supporter, not a candidate, and I do not accept as plausible that Pillayan himself, accompanied by CID officers, visited the family home and harassed the applicant's mother and issued threats against the applicant. 13 The primary judge observes that the IAA found (at [37]) that the appellant was a low-level TNA supporter, not a candidate, and as there had been an easing in political tensions since the election in 2012, the appellant would not face serious or significant harm as a result of not supporting the government candidate. These findings, the primary judge concludes, were reasonably open to the IAA. 14 In ground 3, the appellant contended that the IAA failed to consider a claim expressly made that his brother was a witness to war crimes and that he was of interest to the authorities for that reason. The primary judge notes that in the appellant's claims that were summarised by the IAA (which are set out in [4] above), at (e), the IAA records the claim that: The applicant's brother was a witness to war crimes committed by the Sri Lanka authorities and would be able to give evidence against the authorities and this is why they are pursuing him. 15 The primary judge notes that the claim advanced by the appellant was that because of his brother's position as a volunteer member of the LTTE, he witnessed war crimes during hostilities, which made him a target, and gave rise to one aspect of the appellant's claim to fear harm. However, the IAA rejected that claim because it found at [31] of its reasons that the appellant's brother had no connection at all with the LTTE and it rejected that the authorities imputed him with an LTTE connection. Having rejected this aspect of the claim, the primary judge reasoned that it was apparent that the IAA concluded that he could not have witnessed the war crimes. The primary judge concluded that this was a case where the 'war crimes' aspect of the claim was acknowledged, but subsumed in a finding of greater generality and one which meant that the a precondition (his brother's LTTE membership) relied upon by the claim was not made out. 16 Accordingly, the primary judge dismissed the application.

THE APPEAL 17 On appeal, the appellant relies on the 7 grounds identified above. Grounds 1 (in part), 4, 5, 6 and 7 were not raised before the primary judge. Accordingly, the appellant requires leave to raise them for the first time on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] - [48]. 18 The appellant presented as an articulate and intelligent young man, who ably represented himself at the hearing. He explained that he was dissatisfied with the representation provided to him by Mr Kumar at the hearing before the primary judge, that Mr Kumar had not advanced all of the points that he wished to advance at the hearing and he deduced that Mr Kumar was no doubt very unwell at the time of the hearing because he received notification from his clerk only shortly after the hearing that Mr Kumar had passed away. He submitted that the grounds that he now wished to advance had merit, and that the reason that the points had not been advanced previously was because of his prior representation. 19 Below, I consider the merit of each of these grounds before returning to whether leave to advance them on appeal should be granted. 20 I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the SHEV or to grant the appellant a visa. As such, neither court has the capacity to consider the factual merits of the IAA's decision to refuse to grant the SHEV to the appellant. The jurisdiction of the FCCA is limited to considering only whether the IAA's decision to refuse to grant the appellant the SHEV is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA, on appeal from the IAA, under s 24 of the Federal Court of Australia Act 1976 (Cth). 21 In ground 1 the appellant contends that the primary judge fell into error when considering the letters from Mr Yogeswaran MP and the St Peter's Church. Seven particulars are appended to this ground. They fall into two categories. In the first (particulars (a) - (f)), the focus of the ground is error on the part of the IAA in failing to accept the appellant's application to rely on the evidence because it was raised in "exceptional circumstances" within s 473DD of the Act. 22 This category can immediately be set to one side, because it is based on the incorrect premise that the information contained in the letters was not considered by the IAA. In fact it was. The IAA found that the letter dated 13 October 2016 from St Peter's Church satisfied the requirements of s 473DD (at [7]). It found that the letter from Mr Yogeswaran MP dated 4 November 2016 was virtually identical to a letter from the same author on 9 September 2013 that had been received before the delegate. Accordingly, it was not new information. 23 The second category (in particular (g)) contends that the IAA failed to conduct a proper review of the evidence and thereby committed a jurisdictional error. 24 I assume, in favour of the appellant, that by this particular he intends to ventilate ground 1 advanced before the primary judge, namely that the IAA erred by finding that supporting letters provided by the appellant contained "hearsay information", and the primary judge erred in failing to find that the IAA had erred. However, in my view the reasoning of the primary judge reflects no such error. Although the IAA is not a court, and is not bound by the rules of evidence, the IAA was entitled to consider in weighing the evidence that the authors of the two letters in question were not demonstrated to be witnesses to the relevant events, but had learnt of them second-hand. In regard to both letters, it is an inference that it was open for the IAA to draw. In any event, the weight to be given to the evidence is a matter for the tribunal of fact: Abebe at [197]. 25 Accordingly, ground 1 of the appeal must fail. 26 In ground 2, the appellant contends that the IAA erred in failing to consider the claim that he was at risk due to his role with the sports club, and failed to assess his claim or give it meaningful consideration, and the primary judge erred in failing to so conclude. In the particulars appended to this ground, the appellant emphasises that the failure on the part of the IAA was to consider his claim to fear arising from his association with the sports club per se. This was also ground 2 before the primary judge. 27 In his oral submissions, the appellant emphasised that as a prominent member of the sports club and a successful athlete, he was targeted by the politician to garner support for the election campaign, but refused to provide it. This placed him at risk. This submission correctly places the same emphasis on the sports club as the appellant did in his original statement in his application for his visa, namely that it was not membership of the club alone that made him a target. Rather, his claim was that as a member of the club he was asked to provide support for a local candidate's political campaign and because of his refusal to do so, he was the subject of victimisation. This claim was squarely addressed by the IAA at [37], which is set out in [12] above. Accordingly, the primary judge was correct to reject this ground. 28 In ground 3 the appellant contends that the IAA erred in failing to consider his claim that his brother was a witness to war crimes, and so, whatever his level of membership with the LTTE, the authorities had interest in his brother and also the appellant himself. In his oral submissions the appellant emphasised that in Sri Lanka during the last part of the war some 20,000 people went missing. His brother was a witness to war crimes, and complaints about those war crimes have been made to the United Nations Commissioner for Refugees. The authorities are keen to find him to ensure that he goes missing before he can provide details of those war crimes. If the appellant returns to Sri Lanka, they will victimise him because of his connection with his brother. 29 The IAA summarised the appellant's claims in relation to his connection with his brother, most particularly in [14] (quoted at [4(a) to (e)] above). It considered the appellant's claims concerning his brother, but concluded that it was not satisfied that his brother was a member of the LTTE at all, and did not accept that he was of ongoing interest to the authorities because of any real or imputed LTTE connection. In reaching that conclusion the IAA articulated several separate reasons. First, it did not consider that his release, following a week in detention in 2009 after he returned from abroad, was consistent with ongoing concern on the part of the authorities that he had been a member of the LTTE. Secondly, it did not consider it credible that after his release the Criminal Investigation Department (CID) continued to harass his brother, rather than detaining him again, a power used liberally at that time by the authorities. Thirdly, it did not accept as credible that the brother, whom the appellant claimed was a high-ranking member of the LTTE, was able to avoid the CID after leaving the LTTE in 2006 (see [27] - [30]). Fourthly, it found that it was improbable that the authorities were interested in the appellant's brother as a former high-level participant in the LTTE given that he was able to travel to and from overseas from 2009 to 2012 and also to live, undetected by the authorities, in Sri Lanka from 2009 to 2012. 30 Having regard to these matters, the IAA rejected not only that the brother had been a high-level member of the LTTE, but that he had been a member of the LTTE at all. 31 The primary judge reviewed these findings, and concluded that the appellant's claim that his brother was being pursued by the authorities because he witnessed war crimes was predicated on the contention that he witnessed those crimes as a result of his membership of the LTTE. Rejection of the claim that he was such a member carried with it rejection of the claim that he had witnessed war crimes. In my view that was the correct approach. 32 In the statutory declaration provided by the appellant in March 2016, he states that the CID started harassing his brother: ...because he had been a member of the LTTE. The United Nations are now trying to get information from people who participated in the war. The authorities are scared that people will find out what happened in the war and that is why the government is looking for my brother. 33 It is apparent that once the IAA rejected the evidence that his brother was a member of the LTTE at all, the claim that he had witnessed war crimes and was pursued by the authorities for that reason was also rejected. No claim was made that the brother was a low-level participant in the LTTE. The primary judge was correct to conclude that no jurisdictional error has been demonstrated. Ground 3 must be dismissed. 34 In ground 4 the appellant contends that the IAA erred in its consideration of information regarding his family's connections with the LTTE. In particulars provided, he contends, in effect, that the IAA was wrong to reject the claims in relation to the brother. This ground was not raised below. 35 In my view this ground is no more than a challenge to the factual findings of the IAA. Whilst the appellant contends that the reasoning advanced by the IAA was legally unreasonable, the reasoning of the IAA, aspects of which I have summarised in [29] above, falls well short of the legal standard for unreasonableness necessary to reach a conclusion of jurisdictional error; see, for a convenient summary of the authorities, DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ). 36 In ground 5 the appellant alleges that the IAA fell into jurisdictional error by unreasonably imposing an arbitrary standard of conduct in relation to his case. In the particulars appended to this ground it is apparent that the challenge is to the findings of the IAA concerning the involvement of the appellant's brother in the LTTE. Those findings are said to have had no evident and intelligible justification. For the reasons that I have set out in relation to grounds 3 and 4, this ground is not sustainable and must be dismissed. 37 In ground 6 the appellant contends that the IAA fell into error by way of legal unreasonableness because the IAA failed to show caution in identifying inconsistencies in the evidence. 38 The appellant refers to the decision of the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [21] - [28] (Kenny, Griffiths and Mortimer JJ), which provides a salutary reminder of the task of a tribunal, and the Court on appeal, in considering the assessment of claims made. At [41] the Full Court said: [41] For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows. (a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker's powers, procedures, functions and obligations. (b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction. (c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored "relevant material" does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant's claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error. (d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision). (e) Merely because there is no reference in the decision-maker's reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ). (f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review. 39 In the present case, in my view the IAA did not fail in its task by identifying the inconsistencies in the evidence concerning the appellant's brother and his supposed involvement in the LTTE. The facts of the present case are quite different to those in AVQ15. 40 In ground 7 the appellant contends that the primary judge erred in failing to find that the IAA acted illogically at [24] of its decision. In that paragraph the IAA accepted that his brother travelled legally to Saudi Arabia in 2007, returned to Sri Lanka in 2009 and departed again in 2012. However, it did not accept the appellant's evidence that his brother was able to travel in this way without being apprehended by the authorities because his mother had paid money to an agent to facilitate it. In this regard, the IAA referred to independent country information that identifies sophisticated checking systems that operate at the airport in Colombo, including the use of 'stop' and 'watch' lists of people of interest. The IAA concludes that as the brother was contended by the appellant to have had a high-level of participation in the LTTE (former head of intelligence for a district), it was not credible that he would have been able to avoid scrutiny at the airport when departing in 2007 and 2012. 41 This finding forms part of a matrix of factual findings that led the IAA to reject the claims made by the appellant in relation to his brother's involvement in the LTTE. Some of the other findings have been mentioned above. I do not consider that the appellant has demonstrated an absence of logic in the approach in [24] of the reasoning of the IAA. Furthermore, I do not consider that the appellant has established that the matrix of findings, taken as a whole, demonstrates unreasonableness, or a lack of logic or a failure to actively engage with the subject matter before it. This ground of appeal must fail.

DISPOSITION 42 I have considered each of the 7 grounds of appeal raised by the appellant on its merits, notwithstanding that part of ground 1, and all of grounds 4, 5, 6 and 7, were not raised before the primary judge. Although the appellant did his best to present a cogent case, ultimately my conclusion is that none of the grounds succeed. In these circumstances, it is not necessary for me to consider separately the question of whether or not leave should be granted to rely upon them. 43 In the result the appropriate orders must be: (1) The appeal is dismissed; (2) The appellant pay the first respondent's costs of the appeal. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.