EDB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Application 7 The Appellant had some legal assistance in sending the Application to the Minister's department. However, it does not appear that he had legal or professional assistance in preparing submissions, or other significant assistance in presenting his claims in support of the Application. 8 The Appellant's reasons for seeking protection included the following claims: (a) the Appellant is a Hindu, and a Tamil national of Sri Lanka and of no other country, with no right to enter and to reside in any other country; (b) in about 2005, the Appellant's father was forced to provide his vehicle to the Liberation Tigers of Tamil Eelam ('LTTE'); (c) in 2007, Sri Lankan authorities detained the Appellant's father and the Appellant and beat them for three days because of this support given to the LTTE; (d) from 2007 to 2009, the Appellant was monitored by an unknown armed group and at times taken into their camp; (e) in 2012, the Appellant campaigned in provincial elections for the Tamil National Alliance ('TNA') and was assaulted by political opponents, being thrown against a fence; (f) this treatment became intolerable and he left Sri Lanka; (g) the Appellant cannot avail himself of the protection of the state as he fears the Criminal Investigation Department ('CID'), an arm of the government of Sri Lanka, and cannot relocate within Sri Lanka; (h) the Appellant has departed Sri Lanka illegally and made a claim for asylum in Australia, and so the Appellant fears harm as an illegal emigrant on return to Sri Lanka; and (i) the Appellant fears beating and serious harm in detention in the event that inquiries were to be made about him upon his return and his history were to be revealed to the Sri Lankan authorities.

The Delegate's Decision 9 The Delegate accepted that some of the events claimed by the Appellant did occur. However, the Delegate considered that inconsistencies between the Enhanced Screening Interview and the SHEV Interview undermined the Appellant's claims in respect of the likelihood of future harm or persecution. The Delegate ultimately concluded that the Appellant, with the history he claimed, was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) of the Act or as complementary protection under s 36(2)(aa) of the Act.

Relevant material before the Authority 10 The Appellant, who was unrepresented before the Authority, made a submission to the Authority which included the following statement: I will be questioned at the airport while checks are undertaken. The Authorities at the airport will notify my return to my home area, my previous arrest and detention on suspected LTTE involvements and my escape will come to the attention of the authorities. I will be detained for an additional questioning and I will be subject to harm due to these cumulative basis [sic]. On my arrival at the airport in Colombo, I would be questioned by the CID and I will be persecuted and prosecuted as well for my illegal departure as a Tamil male with the suspected LTTE profile/other political profile. There is information before the DIBP that there are potential risks of physical violence in prison. 11 The material before the Authority also included reports by the Australian Department of Foreign Affairs and Trade ('DFAT') referring to abuses suffered by Tamils in Sri Lanka, including persons in detention, and some reports of harm of asylum seekers on return from abroad. This included a DFAT country information report on Sri Lanka dated 16 February 2015 ('DFAT Report') which reported on incidents of torture. The DFAT Report said at cl 4.17: In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan 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. Incidents of torture are not confined to any particular ethnic, religious or political group. 12 It is to be noted that the DFAT Report in the Appeal Book before this Court is dated 16 February 2015. The DFAT country information report that is cited by the Authority in its reasons is dated 18 December 2015. I have assumed that the country information report was updated in the period between the Delegate's decision and the Authority's Decision and that cl 4.17 is in the same form in both documents. 13 This was augmented by other material to which the Authority referred, including guidelines for assessing the eligibility of Sri Lankans for asylum published by the United Nations High Commissioner for Refugees ('UNHCR Guidelines').

The Authority's Decision and reasons 14 The Authority accepted that the Appellant and his father had been detained and beaten for three days in 2007 because of having supplied a vehicle to the LTTE in 2005, that after this detention he continued to be monitored and inquired after by unidentified armed groups that were most likely pro-government paramilitary forces, and that he may have been taken into the camps of these groups. However, the Authority considered that the Appellant's links to the LTTE were "minimal" and the changing pattern of monitoring by the authorities meant that the Appellant did not have a relevant profile with the LTTE. 15 The Authority also accepted the Appellant had campaigned for the TNA, that he was threatened and subject to a minor assault, and that he might in future suffer "low level harassment" if he were to continue to assist the TNA in future elections. However, the Authority found that this would fall short of serious harm and persecution. 16 In respect of the Appellant's departure from Australia, the Authority found that the evidence indicated that any inquiries made by the CID about the Appellant's possible departure in 2012 were not because of the Appellant's personal profile but because of general concerns about illegal departures. 17 The Authority also considered that the Appellant had "no relevant profile as a person with actual or suspected links to the LTTE", and so was not at risk on return as an illegal departure. It concluded that the Appellant did not have an LTTE profile such as to cause him to have a real chance of suffering persecution or significant harm. 18 The Authority noted that prison conditions in Sri Lanka were poor, but did not consider that if the Appellant spent a brief period in prison as a person who had illegally departed from Sri Lanka this would amount to serious harm such as to be persecution, with the consequence that the Appellant was a person in respect of whom Australia owed protection obligations. 19 The Authority was also not satisfied that any harm the Appellant might suffer in prison would be intentional such as to be torture, cruel or inhuman or degrading treatment or punishment amounting to "significant harm" within the meaning of the Act, and to give rise to a right to complementary protection under the Act. 20 The Authority found that the Appellant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse to grant the Visa.

Ground One 21 The first ground of appeal challenges the primary judge's conclusion that the Authority did not fail to take into account relevant considerations, including evidence about the generality of torture and two specific sentences from cl 4.17 of the DFAT Report. 22 The relevant principle to be applied was stated by the Full Court of this Court in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34] (Katzmann, Griffiths and Wigney JJ): …where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight … (Citation omitted.) 23 This passage has been cited with approval on numerous occasions: see, eg, ETA067 v Republic of Nauru (2018) 360 ALR 228 ('ETA067') at [13] (Bell, Keane and Gordon JJ); BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515 at [16] (North and Charlesworth JJ); Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at 606 [46] (Greenwood, McKerracher and Burley JJ); Matthews v Minister for Home Affairs [2020] FCAFC 146 at [36] (Middleton, Perry and O'Bryan JJ). It is clear that a court should not find that evidence was not considered merely because that evidence was not referred to in the decision-maker's reasons. There is no obligation on the Authority to refer to every piece of evidence before it: see ETA067 at [13] (Bell, Keane and Gordon JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ). 24 Further, if a court finds that evidence was not considered, it does not automatically follow that jurisdictional error has been committed. A failure to consider evidence will only amount to jurisdictional error if that evidence was material to the Authority's decision: see generally Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. 25 The Appellant complains about the following part of the Authority's reasons, and in particular the emphasised sentence, which appears in that part of the Authority's reasons where it is considering the possible risk to the Appellant were he to land at a Sri Lankan airport: While there are reports of failed Tamil asylum seekers or other Tamils returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has certain actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker is not enough, in my view, to give rise to a real chance of harm on return. While I accept that the applicant and his father were investigated in relation to suspected links with the LTTE in 2007, I do not accept that the applicant remained under suspicion after that time, nor do I accept that there is a real chance that the past investigation would result in the applicant being subjected to serious harm now or in the reasonably foreseeable future. I do not accept that the applicant will be imputed with pro-LTTE or anti-government dissident beliefs by the authorities because of his family background, or for any other reason, and I find that the applicant does not face a real chance of persecution on returning to Sri Lanka. (Emphasis added.) 26 According to the Appellant, in so saying, the Authority (and subsequently the primary judge) overlooked the following emphasised sentences from cl 4.17 of the DFAT Report (which I have already referred to): In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan 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. Incidents of torture are not confined to any particular ethnic, religious or political group. (Emphasis added.) 27 The Appellant's argument is that the Authority did not refer to these underlined sentences from the DFAT Report, and so it should be inferred that it did not consider it. The Appellant then argues that this was "important evidence" such that the failure to consider it amounts to jurisdictional error. 28 The Appellant also refers to other material which is said to have been overlooked or not properly considered by the Authority, and which supported or re-enforced those underlined sentences and the significance of torture generally. 29 Reference was made to an email from the Appellant to the Authority dated 7 September 2016,which included the following passages from the Appellant's submissions (part of which I have already referred to above): The independent and reliable country information enclosed herewith evinces that a Tamil questioned on suspicion due to his ethnicity and/or suspected political reason the Sri Lankan security forces would be likely to suffer harm to them as their usual practice. I failed to tell this in my first entry interview and in this regard this was my omission. I was tired after my long sea journey and my memory were reasons for my omission. However, I disclosed in my second entry interview about the harm that I had faced in Sri Lanka. I was told in the first entry interview to give brief claims and to answer their questions. I had a good expectation that I could provide details of my claims in my immigration interview. I humbly request that you should not draw adverse inferences due to the omission in the first interview about the harm that I had faced in Sri Lanka. … I refer to the DFAT Report dated 16 February 2015 which is reliable country information on Sri Lanka evinces that my client's refugee claims are consistent the reliable country information and that Report supports the following. They are: 1. Failed asylum seekers, especially Tamils, will be detained on arrival for questioning; 2. There is possibility of ill-treatment during the questioning process although it would be purpose of his illegal departure from Sri Lanka; 3. I am a Tamil from the East, domiciled in the LTTE controlled areas, with past suspect profile/record including my past detentions and questionings as a Tamil with the LTTE suspected profile; and … I arrived in Australia by boat. I will be questioned at the airport while checks are undertaken. The Authorities at the airport will notify my return to my home area, my previous arrest and detention on suspected LTTE involvements and my escape will come to the attention of the authorities. I will be detained for an additional questioning and I will be subject to harm due to these cumulative basis. On my arrival at the airport in Colombo, I would be questioned by the CID and I will be persecuted and prosecuted as well for my illegal departure as a Tamil male with the suspected LTTE profile/other political profile. There is information before the [Department of Immigration and Border Protection] that there are potential risks of physical violence in prison. I will have to suffer continually in detention until a relative and/or family bail me. In fact there is no one in Colombo to vouch for, and bail me. 30 Reference was also made by the Appellant more generally to the DFAT Report and the following passages (including cl 4.17): Monitoring, harassment, arrest and detention 3.10 Many Tamils, particularly in the north and east, expressed a fear of monitoring, harassment, arrest and detention by security forces under the Rajapaksa government. For example, during the civil conflict, more Tamils were detained under emergency regulations and the [Prevention of Terrorism Act 1979 ('PTA')] than any other ethnic group. This was largely due to LTTE members and supporters almost all being Tamil. However, there were also likely instances of discrimination in the application of these laws with LTTE support at times imputed on the basis of ethnicity (see also October 2014 Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam). There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The new Sirisena government has reportedly asked for a list of all detainees held under the PTA for review, and has said it is willing to work with the International Committee of the Red Cross in providing greater access to detainees and establishing a comprehensive database on detainees. 3.11 A number of those intending to leave Sri Lanka and travel to Australia by irregular means surveyed by the Australian National University's Development Policy Centre, cited persecution and torture as reasons for leaving. This included 37 per cent who said they wanted to leave Sri Lanka because of 'persecution in Sri Lanka' and 36 per cent who cited 'torture in Sri Lanka'. DFAT assesses that these fears are significant 'push factors' for external migration. … Deaths in custody 4.11 Although there are no reliable figures available, some criminal suspects have died while in custody. In some instances, police argued the deaths were in self-defence. Deaths in custody are generally unrelated and isolated in nature. Disciplinary and legal actions related to such incidents have been recorded. 4.12 In addition to deaths in custody, there have been a number of incidents of prison riots (unrelated incidents in different prisons), resulting in several deaths. For example, following a search of the Welikada Prison in Colombo in November 2012, a riot resulted in the deaths of 27 prisoners. … Torture 4.16 Article 11 of the Sri Lankan Constitution, and other laws, prohibit torture. Sri Lanka has ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture is an offence punishable by imprisonment of between seven years and 10 years. 4.17 In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan 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. Incidents of torture are not confined to any particular ethnic, religious or political group. 4.18 Torture may be used to extract information or confessions from suspects. Although evidence obtained by torture is generally inadmissible in courts in Sri Lanka, for those suspects held under the PTA, all confessions obtained at or above the rank of Assistant Superintendent of Police are admissible in court. 4.19 Victims of torture can complain to the HRCSL or directly to the Supreme Court about violation of their fundamental rights. There were a total of 535 complaints of torture reported to the HRCSL in 2012. However, it is difficult to determine the prevalence of torture with any accuracy which means that few reports are proved or disproved. Disciplinary action can also be taken if such complaints are made against the police or in prisons, but there have been few recent cases where charges have been brought against police officers for torture. Torture or mistreatment of returnees 4.20 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties. 4.21 However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment (see also 'Treatment of Returnees', below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous government, DFAT assessed that the risk of t torture or mistreatment for returnees was greater for those who are suspected of committing serious 'pod crimes, including people-smuggling or terrorism offences. This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention. It is too early to make an assessment as to whether this will change under the Sirisena government. 31 The Appellant also referred generally to a thematic report by DFAT on people with links to the LTTE dated 3 October 2014, including the following passages: Torture 4.6 As noted in the October 2014 Country Report on Sri Lanka, there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of actors. 4.7 In relation to people with suspected links to the LTTE, DFAT is aware of publications including Freedom From Torture's 2011 report 'Out of the Silence', Amnesty International's 2012 report 'Locked Away: Sri Lanka's Security Detainees', and those raised by Human Rights Watch in 2012. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties. Many of these cases relate to the period immediately following the end of the conflict. 32 Then reference was made to another email from the Appellant to the Authority dated 18 September 2016 which included the following passages: I humbly submit that the [Authority] should consider the combination of claims in my submission of 7 September 2016 and the relevant fact that I went to Chemist with my friend to buy glucose and saline water for my sea journey to Australia. I met two CID people who asked us whether we were planning to go to Australia by boat but when my friend who was assaulted by them he said to them that the items were for my grandmother. Both my friend and my Sri Lankan ID cards were checked and details were noted by the CID. The CID left warning us that we should inform the CID if we knew anyone leaving to Australia by boat. The CID went to my home as well when the CID found that I was not there and questioned my mother who did not disclose my sea journey to Australia. However, my mother was warned by the CID. But the CID found through my friend that I left to Australia by boat. My friend was warned that he should tell the CID when I arrived in my village. The fact that after I was warned by the CID not to travel by boat to Australia I travelled to Australia by boat and if my asylum was refused here would cumulatively put me in a serious harm from the CID on arrival and/or later for the offence under Immigration and Emigration Act of 2006. I would be treated differently than other Tamils generally. 33 I should say at the outset that I do not regard the more general claim of torture or harm as being clearly raised or as arising on the material before the Authority. In my view, the primary judge was correct in her finding that the Appellant had not submitted during the visa application process, in any clear or significant fashion, that he would be tortured merely on account of being in prison separate from his Tamil ethnicity and alleged LTTE connection. It was these factors of ethnicity and LTTE connection that were the basis of the Appellant's claims. Nor can I conclude that the fact that torture could occur for a variety of reasons, and was not confined to any particular group, was overlooked by the Authority. 34 There is no doubt that the Authority considered the information in the DFAT Report and other relevant sources of information. In my view, the critical sentence in the Authority's reasons which the Appellant challenges is consistent with the Authority having considered the relevant sentences of the DFAT Report to the extent necessary in light of the claims of the Appellant. The Authority said "the key risk factor is whether a Tamil has certain actual or perceived links to the LTTE" (emphasis added). It did not say "the only risk factor". The Authority said it had considered the country information before it, which included all the passages relied upon on appeal and referred to above. 35 The Authority, in not expressly referring to the sentences of the DFAT Report, or specifically dealing with evidence as to the generality of torture, indicated that these considerations were not material to its decision. In light of the other findings made by the Authority, I do not consider this to have led to any jurisdictional error.

Ground Two 36 The second ground of appeal challenges the primary judge's conclusion that the Authority did not err in interpreting or applying the law. 37 It was submitted by the Appellant that in determining that the Appellant did not have a real chance of persecution, or a real risk of significant harm, on return to Sri Lanka, the Authority misinterpreted or misapplied the legal test it was required to apply. This was said to be because, unless finding with a high degree of certainty that there had been a definite and enduring cultural change away from violence and torture, the Authority could not have reached such a conclusion if it had correctly understood and applied the important principle from Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'). It was then submitted that the Authority, in effect, was requiring something greater than a real chance of persecution, or a real risk of significant harm, and thus failed to act within its jurisdiction. 38 A real chance of persecution or a real risk of significant harm was sufficient to establish a claim for protection and the grant of the Visa. "A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.": Chan at 398 (Dawson J); see also 389 (Mason CJ). 39 The Authority accepted the Appellant's claimed history, and some consequences, as follows: (a) being detained and beaten for three days with his father in 2007 because his father's vehicle was found in the possession of the LTTE; (b) the relevance of the UNHCR Guidelines relating to the possible need for international protection by former supporters of the LTTE that were involved in giving shelter, transport, funding or other support to the LTTE; (c) being monitored by Sri Lankan authorities after detention in 2007; (d) that unidentified armed groups, most likely paramilitaries who at that time were working with the Sri Lankan government, continued to inquire after the Appellant and may have taken him into a camp on occasions; (e) that the Appellant supported a TNA candidate in elections in 2012 and was threatened and suffered assault by opposition members, most likely the Tamil Makkal Viduthalai Pulikal; (f) that (as I have already observed above) if the Appellant were to continue to assist the TNA in future elections he may suffer low level harassment, in the context of the documented, generally low level political violence that accompanies election campaigns in Sri Lanka; and (g) that the Appellant left Sri Lanka illegally and will undergo routine investigation on return to Sri Lanka at the airport, which will likely include action by the immigration, intelligence and police authorities, and might involve inquiries of the police or neighbours in the Appellant's village. 40 Notwithstanding the above findings, the Authority found that the Appellant has "no relevant profile as a person with actual or suspected links to the LTTE". It was submitted by the Appellant that this is a finding difficult to reconcile with the UNHCR Guidelines which were regarded by the Authority as important and reliable, and advised that persons from Sri Lanka with certain LTTE profiles may be in need of international protection, including, relevantly, former supporters who were involved in sheltering or transporting personnel or providing funding or other support to the LTTE, depending on their individual circumstances. 41 The Appellant also noted the observation of the learned Judge at first instance (at [50]) that "the Authority determined that there is no real chance the Applicant will face serious harm, by making conclusions on the circumstances surrounding the past events (which it accepted occurred)." The Appellant submitted that the findings of past harm, the findings as to the likelihood of future investigations which the Appellant would face if returned to Sri Lanka, and the Authority's conclusions, show that the Authority was applying a higher test than required by the "real chance" test. 42 The Appellant's argument essentially is that the Authority must have misinterpreted the "real chance" test, and required too high a degree of likelihood of future harm, because that is the only explanation for the Authority's conclusion, having regard to the fact that the Authority accepted some of the Appellant's claims about historical events in his life. 43 The primary judge rejected this argument. Her Honour said (at [49]), in my view correctly, that "[t]he mere fact that the Authority made findings accepting the [Appellant's] account of events does not mean, on that basis alone, that there was a 'real chance' of the events or any harm occurring on return". Her Honour also noted that: (a) the Authority assessed what occurred in the past and determined whether, in light of them, there was a real chance of harm in the future; (b) the Authority used language, and reasoned in a manner, which showed that it understood the meaning of a real chance of harm. (c) the Authority considered the Appellant's individual circumstances and concluded, informed by country information, that he did not have the requisite profile to give rise to a real chance of harm. 44 Past events are informative of future harm but they are not controlling or determinative. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, the High Court recognised (at 575) that "what has occurred in the past is likely to be the most reliable guide as to what will happen in the future", but their Honours also recognised (at 574) that "[p]ast events are not a certain guide to the future". 45 Nothing in the Authority's treatment of the Appellant's claims suggests that, in carefully evaluating his claims, it misunderstood the test it was to apply or failed to apply the correct test. It was open (and does not provide a sufficient basis to infer a misinterpretation of the legal test to be applied) for the Authority to find, looking forward as at 15 December 2016, that there was not a real chance of harm. This remained so despite the Authority's finding that, in 2007 and 2012, events occurred in the Appellant's life which were most regrettable, having regard to (to adopt the Authority's words in one context) "the length of time that has elapsed since the events of 2012".

Ground Three 46 The third ground of appeal challenges the primary judge's conclusion that the Authority's decision was not legally unreasonable. 47 Even if legal unreasonableness is relevant in the present circumstances, on the basis of the above reasons, there is no illogicality or unreasonableness. The Authority had a proper basis to reach the conclusions it did.

CONCLUSION 48 Each of the grounds of appeal are without merit. 49 The Appeal will be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Middleton.