DYZ19 v Minister for Immigration, Citizenship and Multicultural Affairs

RELEVANT DECISION OF THE IAA 8 The IAA reasons to affirm the delegate's decision dated 19 September 2019 identified the potential harm to the applicant if he were returned to Sri Lanka, and discussed whether there were exceptional circumstances for the IAA to consider the new information before it. 9 The IAA noted that s 473DD of the Migration Act was not intended to allow asylum seekers to take advantage of the merits review process by presenting new claims or evidence, or to bolster their original unsuccessful claims, after being informed why the Department considered they were not entitled to protection. 10 At para 9 of the IAA's decision it referred to the appellant's submissions in 2017 and 2019 where he expressed fear of being seen as a potential witness to human rights abuses. 11 The IAA noted the claim of the appellant that he was aware of several incidents of harm to young Tamils in the area, including their disappearance. The appellant also referred to horrific incidents of harm and torture that other Tamil males had allegedly experienced at the hands of the CID. 12 In his submissions before the delegate the appellant did not claim that he was personally a witness to abuses of fellow detainees. 13 The IAA considered that this was new information. It said: 9. In the 2017 and 2019 submissions the applicant states that he fears he could be seen as a potential witness to human rights abuses as some inmates who were with him when he was detained, were mistreated and are now declared missing, presumed dead. He also states that his brother "T" who was mistreated by authorities on suspicion of LTTE links and fled Sri Lanka has now been granted protection in Australia, and that his mother has recently told him the authorities still ask them about the applicant's whereabouts. The applicant said in his SHEV interview that he was taken by the Criminal Investigation Department (CID) for investigation with four others. He also said in his visa application that he was "aware" of several incidents of harm to young Tamils in the area, that several had "also disappeared" and "it was clear" to "all of them" that the authorities were responsible. He also said he had "heard of several horrific incidents of harm and torture that other Tamil males have experiences at the hands of the CID and "several friends" who reported to, and were targeted by, the CID "disappeared and remain missing to this day". However, he had not claimed before the delegate's decision was made to have personally witnessed such abuses while in detention and I consider this aspect, new information, as well as the statements that the two men remain missing and are presumed dead in 2019, that the authorities continue to look for the applicant in 2019 and his brother has been granted asylum in Australia (he told the delegate his brother had fled Sri Lanka and was in Australia but not that he had been granted asylum). 10. The information is brief and generalised with no pertinent detail, including dates, or supporting information including in relation to the applicant's brother's grant of asylum in Australia, despite the evidence before me indicating they live together in Australia. In the SHEV interview the applicant also said that his brother's story was different and I do not consider his claimed grant of asylum in the absence of further detail, material to the applicant's central claims. The applicant was represented at the visa application and SHEV interview stages. His and his brother's claimed mistreatment by Sri Lankan authorities was squarely at issue in the SHEV interview but he did not claim the authorities continued to look for him in his visa application or 2017 submission. I also find his brief explanation for the late provision of this information, namely that the two men's families have now "confirmed that they remain missing and he can report the authorities are still looking for him in 2019 "after having spoken to his mother this week" unpersuasive. This is particularly so, given the applicant has previously said he speaks with his family weekly, and there is nothing before me to indicate otherwise. I do not accept information in relation to his witnessing human rights abuses and the authorities continuing to look for him, as credible in the circumstances. I am not satisfied exceptional circumstances exist to justify considering the information. 14 The IAA acknowledged that the central issue in the appellant's claim was whether he was of genuine and on-going interest to Sri Lankan authorities, because of suspected LTTE links. 15 The IAA accepted that there were exceptional circumstances to justify consideration of updated information relating to conditions in Sri Lanka, including in relation to treatment of Tamils and profiles of interest to the Sri Lankan authorities. 16 The IAA considered that the appellant would not be of a genuine and ongoing interest to the Sri Lankan authorities. It further found that he did not have an adverse security profile when he left Sri Lanka in 2010. The conflict in Sri Lanka ended in May 2009 prior to which some 11,000 suspected people with LTTE links were screened and sent to government-operated rehabilitation centres. However, the IAA observed that more recently DFAT had assessed that Tamils faced low risk of official discrimination in Sri Lanka. 17 At [37]-[38] of the IAA's decision it observed: 37. The country information before me indicates the Sri Lankan authorities are sensitive to the potential re-emergence of the LTTE. They collect and maintain a 'watch' list. This includes those of interest such as minor offenders, those suspected of criminal or separatist activities and former cadres, who are likely to be monitored. The authorities also maintain a 'stop' list which includes those with an extant court order, arrest warrant or order to impound their passport. Close relatives of high profile former LTTE members who are wanted by the authorities may also reportedly be subject to monitoring by authorities. This is consistent with country information from Freedom from Torture which indicates those detained and mistreated by authorities more recently, overwhelmingly had some personal involvement with the LTTE, whether through forced recruitment or because they housed former members. The small number of victims examined in the same report who did not, were involved in some way in politically sensitive issues or Tamil politics. In this regard, despite the government's rhetoric there are reports the PTA is sporadically used to detain suspects within a counter-terrorism context. The country information before me indicates that if an individual is detained by the authorities in the abovementioned circumstances, they may be harmed. The country information also notes the authorities have a history of using informants. 38. I do not accept the applicant has a profile of interest to the authorities. Neither the applicant nor his brother T were LTTE members or trained with the LTTE. I do not accept T was of genuine and on-going interest to the authorities when he left Sri Lanka around 12 years ago. 1 do not accept the applicant was of interest to the authorities in connection with his other brother, J's, very brief training with the LTTE 13 or more years ago. I note J also passed away at around that time. The applicant was not sent to rehabilitation after the conflict despite being in a village controlled by the authorities and being questioned by them at that time. There is no credible evidence before me to suggest an informant has falsely told the authorities he has LTTE links and based on the applicant's profile it is not apparent to me why any informant would be motivated to do so. I do not accept the applicant was wanted by authorities on suspicion of LTTE links when he left Sri Lanka in 2010. Neither the applicant nor his family have a political profile including in relation to land rights, despite having had their home destroyed during the conflict. I note, they have since been given land near their old home and based on the credible evidence before me they are living a relatively peaceful and self-sufficient existence there. Having regard to the applicant's profile and the county information detailed above, I am not satisfied the applicant faces a real chance of harm on account of his ethnicity, origins and his and his family's past experiences in Sri Lanka. 18 The IAA decided at [42] of its reasons that the appellant was not a refugee for the purposes of s 5H(1) and s 36(2)(a) of the Migration Act.

DECISION OF THE PRIMARY JUDGE 19 The appellant sought judicial review of the decision of the IAA before the primary Judge. The appellant relied on three grounds of review: 1. The Authority's task to review the decision under s.473CB of the Migration Act 1958 miscarried because the Authority applied the wrong test, or incorrectly applied the test of whether the new information provided by the applicant could constitute "credible personal information"; and/or unduly narrowed its consideration of whether there were "exceptional circumstances" for its consideration under s 473DD. 2. The Authority's task to review the decision under s.473CB of the Migration Act 1958 miscarried because the information about the other four persons with whom the applicant was arrested being tortured and two of them not being released but having disappeared was not new information, the information having been provided and basis of the claim having been raised in the protection visa interview. 3. Further or in the alternative, the decision was affected by an interpreting error in that the information by the applicant about the other four detainees who were detained with him being tortured being the ones who were disappeared and not returning home, was not interpreted. 20 The primary Judge examined the decision of the IAA, and in particular para [9] of the IAA's reasons. His Honour noted the view of the IAA that the appellant had produced new information to the IAA relating to the appellant personally witnessing human rights abuses whilst in detention in Sri Lanka. 21 The primary Judge noted that, at first instance, the appellant advanced a translation by another interpreter. The primary part of the new interpretation on which the appellant relied was: Already 15 days. Those that they took they hit them and tortured them, and two or three people were missing. They didn't come back… 22 The appellant submitted in before his Honour that, when looking at the claims of the appellant, the IAA did not make the connection between the people the appellant claimed disappeared, with the people with whom he was "rounded-up". 23 The primary Judge noted that the question for the Court was whether the IAA actually assessed the claim that was made by the appellant. His Honour continued: 27. … The claim that was made is as I have just recorded. The claim is that the CID would do exactly again to the Applicant what they did in 2007, but this time he would not be released. This time he would not be able to leave. This time this would mean that this is the last that anyone would see of him. The IAA had to consider this claim. What it is that the Applicant argues here, is that the claim has another aspect to it, that he genuinely believes or has fear because of those circumstances that the IAA have overlooked. However, I do not see that this changes the claim. Instead, all it does it add some colour to it and give a more subjective aspect to that claim. 24 The primary Judge at [31] held that the IAA had looked at the claim. His Honour continued : 31. … The fact that they may not have looked at the link between the persons who disappeared being the same ones that the Applicant was rounded-up with or whether they have looked at that and not found that that was a relevant circumstance is really not to the point. All that detail does is add colour to the claim. It does not enhance the claim. It is not an integer of the claim. It is not something that corroborates the claim. The claim is as it is, and that claim has been well and truly considered by the IAA. 32. The information that came about after the delegate had made the decision was that the Applicant feared that he would be of interest to the authorities because he was a witness to torture of other people is new information. 25 The primary Judge found at [33] that the appellant's claim, even accepting the alternative translation given to the Court by the appellant, was not a claim that he personally witnessed other people being tortured. His Honour said that this was a new claim, which had been addressed by the IAA. His Honour observed at [33] that that claim did not meet the criteria in s 473DD of the Migration Act. It followed that there was there was no merit to ground 1. 26 In relation to ground 2 before the primary Judge, his Honour observed that the IAA did not find that the appellant's information about four other persons being tortured and subsequently disappearing was "new information". His Honour further observed that the IAA "did not even look at that as "information" itself because that aspect of the matter was never put to them" (at [35]). The primary Judge found at [35] that there was no merit in ground 2. 27 In relation to ground 3, the primary Judge accepted the combination of the two translations, as the appellant requested. However his Honour did not consider that there was any merit to the appellant's argument that there was an interpreting error which caused a jurisdictional error. His Honour found that ground 3 was not substantiated.

Grounds of APPEAL 28 At the hearing of the appeal both the appellant and the Minister were represented. The grounds on which the appellant relied, were as follows: The Circuit Court erred in failing to find that the error of the Authority in failing to consider the claims made by the Applicant was not material to the review of the decision: 1. The claim by the applicant made in the protection visa interview in the Tamil language, about the other four detainees who were detained with him being tortured, and some of them being subjected to enforced disappearance, and he being witness to the circumstances surrounding that human rights abuse was not known, understood, or considered, by the Authority. Particulars i. The Authority failed to connect the applicant's claims at various parts of the interview concerning his arrest with four others, and hence did not understand that he had claimed that he was one of the five, who were subjected to torture, and some of whom did not return but were subjected to enforced disappearance ii. The information about the other four persons with whom the applicant was arrested being (a) tortured, and (b) that some of them did not return but were subject to enforced disappearance was not "new information", the claim having been raised, in the protection visa interview. iii. There were interpreting errors, which caused the IAA to be confused as to what the applicant was claiming iv. The Authority's error was material in that a. the Applicant had claimed in the protection to be a witness to human rights abuses and circumstances surrounding the enforced disappearance of others with whom he was arrested. b. The characteristic of being a member of a particular social group of persons who was a witness to human rights abuse clearly arose on the claims and information given by the applicant to the Delegate. c. The Authority's error in misunderstanding the applicant's claims made before the Delegate materially affected its consideration of the Applicant's claim made in submissions to the Authority to be at risk of harm due to being a witness of human rights abuses. 2. In the alternative, the Applicant seeks leave to argue a ground which was abandoned in the hearing after presentation of the Applicant's case, that the Authority's consideration of the s473DD test was affected by jurisdictional error in that in determining whether to consider the new claim that the applicant was at risk because of being a witness to human rights abuses, the Authority misunderstood the claims that the Applicant had made in the protection visa interview. Particulars: i. The Applicant repeats the particulars in Ground 1 above. 29 In summary the appellant submitted that: Whether there was new information before the IAA was the most relevant issue in the proceedings, and the subject of ground 2 of the appeal (which the Court ought consider first). The primary Judge and the IAA misunderstood the nature of the appellant's claim. The IAA failed to recognise that the information before it was part of an existing claim, not new information. The appellant was a member of particular social group, namely being a witness to circumstances surrounding the enforced disappearance of two missing persons, and accordingly a witness to human rights abuses. The IAA should also have assessed whether the appellant would be at risk of harm as a returning failed asylum seeker. The IAA incorrectly examined the claims of the appellant as referable to his time of departure from Sri Lanka, rather than when he would be returned. The appellant told the delegate that one or more of the five persons who were taken to the CID headquarters in Sri Lanka, and tortured, did not return from CID headquarters. Accordingly, this was not new information before the IAA. The "new claim" was the appellant's claim to be at risk of harm because he was a witness to those enforced disappearances and a witness to human rights abuses. That new claim was made on existing facts before the delegate and the IAA. 30 In summary the Minister submitted that: In relation to ground 1: • The appellant raised no claim before the delegate that he had been a witness to human rights abuses, and a witness to enforced disappearances of others who had been arrested. • In the appellant's interview for a protection visa there was no mention that the appellant personally witnessed the disappearance of others, or human rights abuses. • The primary Judge considered that there might have been a mistranslation and could be two interpretations that the appellant witnessed human rights abuses. The primary Judge nevertheless held that it did not change the nature of the appellant's claim. • There was no real chance that the appellant would be detained, based on country information and facts provided by the appellant. • Any differences in translation were minor and did not prevent the IAA from understanding and considering the substance of the appellant's claim: GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [44]. In relation to ground 2: • The primary Judge dealt with this argument at paragraph 33 and 35 of the judgment. • The IAA identified that the alleged witnessing by the appellant of human rights abuses while in detention constituted new information. • The IAA did not find that appellant's alleged kidnapping by the CID (along with four others) was new information. An argument that the IAA did so find was rejected by the primary Judge.

Consideration 31 The appellant submitted that the Court ought consider ground 2 first.

Ground 2 32 To the extent that leave is required for the appellant to rely on this ground of appeal, the Minister did not oppose it. Indeed the Minister submitted that leave was not required because the issue was argued before the primary Judge, and dealt with by his Honour at [33] and [35]. In my view the better way forward is to treat the issues raised by his ground of appeal as having been dealt with by his Honour, and assess it on its merits. Accordingly, leave is not required for the appellant to rely on ground of appeal 2. 33 I am not persuaded that the IAA misunderstood claims that the appellant had made in his protection visa interview as the appellant contends. I am also not persuaded that the appellant's claims before the IAA of fear of harm for witnessing human rights abuses were anything other than new information for the purposes of s 473DD of the Migration Act. 34 Examination of the delegate's decision record relevantly indicates that, as far as the delegate was informed: The appellant feared harm for an imputed connection to the LTTE; The appellant was subjected to detention and physical assaults as part of group "round ups" conducted by the Sri Lankan military in his home region; The appellant feared harm if returned to Sri Lanka as a failed asylum seeker. 35 There was no reference in the delegate's decision record to the appellant fearing harm as having been a witness to human rights abuses in Sri Lanka. 36 Even examining the transcript of interview of the appellant conducted by a case office with the Department, I am not satisfied that it vindicates the contentions of the appellant. 37 I note an undated transcript of interview with the appellant, relevantly in the following terms: Case officer: So, what do you think would happen to you if you were to return to Sri Lanka? Interpreter: So, the first of all, the reason why I left Sri Lanka, okay so we originally, we displaced from my village in 2007, and we relocated to a place called [M]. So, [M], so I was studying at, [M] School. … 388 Interpreter: Okay, so like yeah, so at that time in my village, there was lots of problems by the Sri Lankan army. And, one of that is like, anyone over eighteen were segregated from the community. So, then after that only, the Sri Lankan army took all the villages to the [M] school. They transport using the bus, like yes. So, we were living in [M] school as refugees for three months, and like at that time only, we got these ration cards and everything. Okay, while we were living in [M] school, say like we are surrounded by navy, navy camp, army camp, and the CIDs. Okay so, while we were in that [M] school, say one day the CID came into the school, and like that they started interrogating all of the young adults like eighteen, over eighteen. So, after the interrogation like, they decided to take some of them to their camp. Okay so, when I was taken to that camp like, they started assaulting me and harassing me, like asking whether involved in LTTE or involved in any other activities. Okay so, while I was in the original village, living in the original village, we were taken, all youngsters were taken by the LTTE for a training, self protection training. Okay so, that's a well-known training given by the LTTE, so everybody knows that like, everybody goes through that training in Sri Lanka. Okay, so, when I went for this interrogation by the CID, they were like asking me questions and they were suspecting me on that regard, like whether I would have gone for this LTTE trainings. Okay, at that time, during that time, it was very dangerous for young boys like me, over eighteen living in that area because like the Sri Lankan army, CID, they always suspected we were LTTE involved adults. [01.06.55] Okay, including myself like four others were taken from the [M] school to the CID camp for further investigations. Okay, so I'm one of the, one of the five like, were taken by the CID for investigation. Case officer: Can you tell me when this happened? Interpreter: So, while I was in that [M] school as refugees, that happened in 2007. Case officer: So, we can talk a little bit more about that time in that camp a 418 bit later. What I want to focus on now is, what you think would happen if you went back to Sri Lanka today? So, what would happen to you in the future? Interpreter: Okay say like, I fled Sri Lanka because of the fear that I went through like, I had lots of bad experiences. And so, and I know that still in Sri Lanka, there are white van abductions, and people disappear, and like even the people who are being sent back to Sri Lanka from the Australian government, like they also disappear at the airport. So, all these things are happening still. So, I'll definitely, I will have danger. Okay, say even my mother is still living as, my family is still living as refugees in my own place… … Case officer: I'm sorry to hear this. So, what made you decide to make arrangements to go to Malaysia? Interpreter: Okay say like yes, the five people who were taken by the CID, like yes out of that, some of them didn't come back, so I don't know what happened to them. So, because of that reason I always, I told my mother like if you want me alive like, can you please send me overseas. Otherwise like, if I live here then this is going to happen to me as well, like yes you won't see me again. So that's the reason like after that, hey pawned all the jewellery and collected money, and made arrangement, my parents. 38 The primary Judge referred to an alternative translation of interview with the appellant, by a different Sri Lankan Tamil interpreter, who gave an affidavit in the proceedings before his Honour, deposing (inter alia) that they had been provided a copy of the audio recording of the interview. The alternative translation was as follows : Interpreter in Tamil: What was the reason for you to leave to Malaysia? 1:20:35 Applicant in Tamil. Already 15 days, those that they took they hit them and tortured them and 2 or 3 people were missing, they didn't come back. Interpreter (inaudible) Applicant: to the school Interpreter: say like here the five, five people who were taken by the CID like yeah out of that some of them didn't come back. (1:20:51) So I didn't know what happened to them. Applicant (In Tamil) (1:21:11) if they don't come back, what will the people there do, they will be asking where is my son he is missing due to this fear I told my mother and father said if they capture me here you won't back, I told them to please send me anywhere, therefore they pawned the jewellery and sent me to Malaysia. Interpreter: So because of that reason I told my mother if you want me alive like can you please send me overseas, otherwise like if I live here then this is going to happen to me as well, like yeah you won't see me again. So that's the reason like after that they pawned all the jewellery and collected money and made arrangement. 39 There appeared to be some inconsistency between these translations, referable to "15 days" and persons not returning, however such inconsistencies appear to be minor. I am not persuaded that these inconsistencies resulted in the IAA failing to discharge the core element of its overriding duty, namely to assess the claims to protection in fact made by the appellant t against the criteria for the grant of the visa (DVO16 v Minister for Immigration and Border Protection; BNB17 v Minister for Immigration and Border Protection (2021) 388 ALR 389; [2021] HCA 12 at [23]). 40 The primary Judge concluded that the IAA had given consideration to the appellant's claims of being tortured and being with others who had been allegedly tortured. The IAA plainly did give such claims consideration. At [9] of its decision the IAA referred to submissions of the appellant that he "fears he could be seen as a potential witness to human rights abuses as some inmates who were with him when he was detained, were mistreated and are now declared missing, presumed dead." At [10] the IAA referred to this "new information" advanced by the appellant, as well as information concerning the alleged interest of Sri Lankan authorities in his brother, and concluded that "the information is brief and generalised with no pertinent detail, including dates…", and further "I do not accept information in relation to his witnessing human rights abuses and he authorities continuing to look for him, as credible in the circumstances." 41 I am not satisfied that the IAA misunderstood claims referable to witnessing human rights abuses made by the appellant, or that the IAA misapplied s 473DD of the Migration Act. In particular, in this case: the IAA did not consider the appellant's claims or information to be credible, and exceptional circumstances did not exist to justify its consideration. 42 Ground 2 is not substantiated.

Ground 1 43 As the appellant submitted, ground of appeal 1 can be seen to follow ground of appeal 2 in that both grounds related to the claim by the appellant allegedly made in his protection visa interview about four other detainees being tortured, those same detainees being subjected to enforced disappearances, and the appellant himself being a witness to human rights abuses. 44 I have already found that the IAA did not misunderstand the appellant's claims made before the delegate or the IAA itself. Critically, the IAA did not assess as credible the appellant's claims of being a witness to human rights abuses, or being one of five persons detained and subjected to torture by Sri Lankan authorities. In such circumstances, there was no basis for the IAA to find that the appellant was a member of a particular social group as claimed in ground of appeal 1. 45 Ground 1 is unsubstantiated.

Conclusion 46 The appeal should be dismissed. 47 The appellant should pay the costs of the first respondent, such costs to be taxed if not otherwise agreed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.