EFH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

2.1 Claims for protection 8 The appellant's claims for protection were set out in a statement that formed part of his SHEV application. In summary, the appellant claimed to fear persecution due to his Christian faith, Tamil ethnicity, imputed political opinion due to his involvement with the LTTE, his cousin's support for the LTTE, his involvement with the Association of Barbers, and his membership of the particular social group comprised of Tamils who have sought asylum in Australia. The appellant claimed to fear harm from the Sri Lankan authorities, associated groups including the Karuna Group (a branch of the Tamil Makkal Viduthalai Pulikal), and other religious groups. 9 In his statement, the appellant recorded the following: (a) In 2002, he was rounded up and beaten by the Sri Lankan authorities on suspicion of being associated with the LTTE. (b) In 2003, he was abducted by the LTTE and taken to a camp where he was taught about the LTTE movement and given military training. After six months he was taken to another camp where he was detained until 2005. (c) In 2005, he sustained a serious knee injury. He was taken to a hospital from which he escaped and returned home. (d) After returning home, the appellant worked at his family's barbershop and became a member of a union group called the Association of Barbers. (e) Between 2007 and 2009, the Karuna Group visited the appellant at home and at his family's barbershop, and harassed him at a nearby army checkpoint. They knew he had received training with the LTTE and asked him to stop working with the Association of Barbers, join the Karuna Group and help them identify LTTE members. On one occasion he was beaten with a rifle. (f) In 2010, the appellant was approached by four men from the Karuna Group and beaten with iron rods. He was told that if he did not join the Karuna Group his "life was not guaranteed" and his family's barbershop "would be no more". The injuries caused the appellant to be hospitalised for 15 days, after which he decided to flee Sri Lanka. (g) After the appellant arrived in Australia, his brother was arrested and interrogated by the Criminal Investigation Department. He understands this was because they were looking for the appellant. 10 On 20 August 2019, the appellant attended an interview with the delegate and made the additional claim to fear arising from the 21 April 2019 Easter Sunday bombings in Sri Lanka. The appellant also claimed that his older brother was a former member of the LTTE. 11 On 23 August 2019, the appellant's representative provided post-interview submissions to the department. He amplified his claim to fear harm arising from recent bomb blasts and added an additional claim about fears arising from the return of President Rajapaska: Recent bomb blasts and the past curfew in his region in Sri Lanka have made him fearful to return there; In addition, when President Rajapaksa was president prior to 2015 he was threatened by Karuna group who assisted the Rajapaksa government to identify former LTTE members. Now that there is a likelihood former President Rajapaksa may be returned to power, he will again be threatened with violence, harm and will face extreme hardship. He is not willing to return to Sri Lanka now, mainly for the reason that the curfew was in place - including in his area of Batticaloa as a result of the bomb blasts which occurred there killing many lives. The area is still quite unsafe and tense and was with many checkpoints from a fear of further bomb blasts which the government cannot stop.

2.2 Decision of the Authority 12 The Authority accepted that the appellant is Christian, that he was rounded up by the Sri Lankan army and subjected to questioning and mistreatment in 2002, and that he was on occasion stopped and questioned by the army and the Karuna Group at a checkpoint between his home and the barbershop at which he worked. 13 However, the Authority rejected the majority of the appellant's claims on credit grounds. In summary, the Authority found, based on country information, that the claimed behaviour of the Karuna Group towards the appellant (see [9(e)] above) was highly unlikely, and rejected his claims that it spent three years, including a substantial period after the end of the war, pressuring him by the claimed means rather than simply abducting or forcibly recruiting him in accordance with its usual behaviour. It also rejected the appellant's claims to have been forcibly recruited by the LTTE in 2003 when he was 13 or 14, finding that much of the detail he provided about his training with the LTTE was inconsistent with country information, lacked relevant detail that he would be expected to recall and was inconsistent with him being a recruit. In addition the Authority found that there were inconsistencies and late embellishments to the evidence and claims made by the appellant. Taken together, the Authority was satisfied that the appellant fabricated parts of his evidence in order to boost his claim to protection including: (a) that he was forcibly recruited to the LTTE and trained by them from 2003 to 2005; (b) that the Karuna Group pressured and threatened him or that he was beaten by the Karuna Group in 2007 and 2010; (c) that he hid at his uncle's place; (d) that his cousin was a supporter or member of the LTTE and that his brother was a member of the LTTE; and (e) that after the appellant left Sri Lanka, his brother was interrogated by the CID who were looking for the appellant. 14 The Authority concluded that the appellant did not have a well-founded fear of persecution and does not face a real risk of suffering significant harm on return to Sri Lanka.

2.3 Decision of the primary judge 15 The appellant relied on the following single ground of application before the primary judge (particulars omitted): The [Authority] made a jurisdictional error in relation to the risk of harm faced by the Applicant from terrorist attacks against Christians in Sri Lanka. 16 The particulars were in the same form as in ground 1 of this appeal (without particular (k) which alleges a failure by the primary judge to find jurisdictional error by the Authority). Relevantly, particular (a) said: Proper, genuine and realistic consideration required the Authority to engage in an active intellectual process directed towards the Applicant's case: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[43]. 17 Particular (h) said: Had the Authority undertaken the requisite engagement with its own findings as to country information, it could have been left in real doubt as to whether such bombings would recur, with the result that the Authority would have applied the "what if I am wrong?" test: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [1], [116]-[119]. 18 The primary judge held that the Authority's findings did not reveal that it was obliged to ask itself "what if I am wrong" and that it had intellectually engaged with the appellant's claims.

3. GROUND 1 - ERROR IN CONSIDERATION OF THE RELIGION CLAIM 19 In ground 1, the appellant first contends that the primary judge erred in failing to find that the Authority made a jurisdictional error in relation to the risk of harm faced by him from terrorist attacks against Christians in Sri Lanka based on the decision in Minister for Immigration and Multicultural Affairs v Rajalingam (1993) 93 FCR 220 (Sackville J, North J agreeing). Secondly, he contends that the Authority failed to give proper, genuine and realistic consideration to the appellant's "generalised sur place claim", namely that recent bomb blasts and the past curfew in his region in Sri Lanka made him fearful to return there as it was particularly unsafe for Christians. The appellant submits that this claim was broader than a fear of further bombings by those responsible for the Easter Sunday bombings; it was a claim to fear of harm due to the heightened security situation as a result of the Easter Sunday bombings, including curfews and monitoring by Sri Lankan authorities. 20 In relation to the first point, the Authority found at [45], [46]: 45. In Easter this year there were a number of mass casualty bombings in Sri Lanka that were targeted at several hotels and Christian churches, one of which was in Batticaloa, and hundreds of people, including churchgoers, were killed. The attacks were said to have been conducted by two Sri Lankan Muslim organisations, two days after the attacks ISIS claimed responsibility and analysis of the attacks suggests they make little sense within the Sri Lankan domestic context but appear to have occurred as part of ISIS' global terrorist agenda. The Sri Lankan authorities have since killed or arrested most of those linked to the bombings, broken up the two organisations and appear to have contained the threat of further such attacks. 46. I accept that anti-Christian acts have occurred. However, although the applicant said he feared harm because he is a Tamil Christian and referred to increasing religious violence against Christians across Sri Lanka, he did not claim he suffered any harm from the authorities or anyone else on account of religion when he was in Sri Lanka or that his family in Sri Lanka have experienced any harm because of their religion, either before or after the applicant departed Sri Lanka. The Easter bombings were a horrific circumstance, but country information suggests it was an act of international terrorism and the Sri Lanka government has contained that threat. In view of the absence of any previous harm or issues in relation to his religion together with the country information that identifies that although some incidents of discrimination, violence and intimidation against Christians occur they are basically few and rare, and there is only a low risk of official discrimination for non-Buddhists, I am not satisfied that, as a Tamil Christian he faces more than a remote chance of suffering any harm or otherwise increases his risk profile. 47. I am not satisfied that there is a real chance that the applicant will persecuted because of his religion, if returned to Sri Lanka, now or in the reasonably foreseeable future. (Emphasis added.) 21 The primary judge found at [40] that the adverse findings by the Authority were not expressed in any language of doubt and that there was "no obligation to apply the "what if I am wrong" test." 22 The appellant submits that the primary judge erred by not finding that the Authority failed to deal with the possibility of harm if what was "said to have been", "suggested" and "appeared to be" at [45] and [46] were not in fact so. In oral submissions the appellant drew particular attention to the four passages emphasised above in [45] of the Authority's reasons and submitted that the language used indicates that the Authority was tentative in its findings. The appellant submits that the Authority also did not deal with the possibility that even if its findings at [45] were correct, not all of those responsible for the Easter Sunday bombings had been killed or arrested and there were other Sri Lankan Muslim organisations and still a global terrorist agenda. He concludes that the primary judge erred in finding at [42] that there was no proper basis to advance that the Authority did not have a thinking, real and meaningful or proper intellectual engagement with the appellant's claims, evidence and submissions. 23 The appellants first contention relies on the principle set out by Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1993) 93 FCR 220. In that case his Honour (North J agreeing) relevantly said: 62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. 63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found". 64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so. 65 Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to "impute" to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker's failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made. 66 None of this is to deny that there may be cases in which a failure by the RRT to consider whether an alleged event may have occurred constitutes a ground of review, even though the RRT considers it likely that the event did not occur. To take an example from Guo, the applicant may rely on the experiences of previous groups of boat people who had been returned to their country of origin. The RRT may find that it is unlikely (in the sense of less rather than more likely on the balance of probabilities) that the previous group had been persecuted for a Convention reason. But the RRT's reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT's findings. If the RRT's reasons demonstrate that the experiences of the earlier groups materially bear on the chances that the applicant will be persecuted, a finding that there is a substantial chance (although not a likelihood) that previous groups were in fact persecuted might have to be taken into account if the RRT is to undertake the reasonable speculation required of it. Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s 430(1)(c) of the Migration Act. 67 In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution. 24 Rajalingam explains a process of reasoning that is necessary to assess whether an applicant has a well-founded fear of persecution within s 5J of the Act. The reasonable speculation in which the decision maker must engage may require it to take into account the chance that past events might have occurred, even though it thinks that they probably did not (at [63]). This may arise where the decision-maker is uncertain as to whether an alleged event occurred. Depending on the significance of the alleged event to the ultimate question, that decision maker may have to weigh up the prospect that the past event did not occur (at [61]). As Sackville J explained at [66], such a circumstance may involve consideration of the possibility that an event occurred, even though it is unlikely. A finding that there may have been a "substantial chance" - falling short of a "likelihood" - that the event took place might have to be taken into account if the decision-maker is to engage in the reasonable speculation required of it. However, the question whether the decision-maker should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to its own reasons. If a fair reading shows that it had "no real doubt" that claimed events occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong (at [67]). Furthermore, Sackville J explained (at [64]) that the decision-maker need not make explicit the degree of conviction or confidence that the findings are correct and (at [65]) that in exercising judicial review powers, the Court is not permitted to impute to the decision-maker a lack of conviction in holding that it should not have relied on those findings. 25 I am not satisfied that the reasoning of the Authority reflects that it had a real doubt as to the occurrence of the events identified in [45] of its reasons. The qualifying language emphasised by the appellant such as "said to have been", "appear to have occurred" and "appear to have contained" reflect no more than the Authority evaluating the country information that it had cited to determine whether there was a real substantial basis for the appellant's claimed fear. In this context, it may be noted that the Authority was not required to make definitive findings of fact. It applied its evaluation in [46] by first noting that whilst anti-Christian acts have occurred, the appellant had not claimed that he or his family suffered any harm on account of religion when he was in Sri Lanka or that his family had so suffered since he departed Sri Lanka. In that context, it then evaluated the country information and concluded at [46]: …The Easter bombings were a horrific circumstance, but country information suggests it was an act of international terrorism and the Sri Lanka government has contained that threat. In view of the absence of any previous harm or issues in relation to his religion together with the country information that identifies that although some incidents of discrimination, violence and intimidation against Christians occur they are basically few and rare, and there is only a low risk of official discrimination for non-Buddhists, I am not satisfied that, as a Tamil Christian he faces more than a remote chance of suffering any harm or otherwise increases his risk profile. 26 Contrary to the submission advanced by the appellant, in my view it cannot fairly be said that the reasoning of the Authority indicates that it considered that there is a substantial chance (although not a likelihood) that the Easter Sunday bombings were carried out by domestic groups other than as part of ISIS' global terrorist agenda or that there is a substantial chance that the threat of further such attacks had not been contained such that it ought to have considered the position if it had been wrong in relation to these points. Rather, the Authority reached the conclusion that there was a likelihood that the source of the Easter Sunday bombings was an act of terrorism by ISIS and that the threat from that group had been contained. Accordingly, in my view there is no basis upon which it may be concluded that the Authority was uncertain, or had any "real doubt", as to whether an alleged event occurred, such that it fell into jurisdictional error. 27 The Minister advances a Notice of Contention on the basis that the primary judge erred in failing to find that unlike in Rajalingam in the present case there was no event which the Authority had concluded had not taken place, but could have, and so the principles in that case were not engaged. He submits that the "what if I am wrong test" potentially attaches to findings of fact as to past events, not to an assessment of the likelihood of future harm. For the reasons given above, it is not necessary to decide the point in the present case. 28 In his second point in relation to ground 1, the appellant contends that he made a generalised sur place claim to fear harm as a Christian in Sri Lanka in his post-interview submissions. In the post-interview submission the appellant said: … Although all four religions are recognized in Sri Lanka, the recent bomb blasts make Christians particularly unsafe. … Recent bomb blasts and the past curfew in his region in Sri Lanka have made him fearful to return there; … He is not willing to return to Sri Lanka now, mainly for the reason that the curfew was in place - including in his area of Batticaloa as a result of the bomb blasts which occurred there killing many lives. The area is still quite unsafe and tense and was with many checkpoints from a fear of further bomb blasts which the government cannot stop. 29 In his written submissions the appellant contends that the claim made was that the Easter Sunday bombings made Christians particularly unsafe. He submits that the claim went further than a fear of future bombings by those responsible for the Easter Sunday bombings but was a more general fear. In his oral submissions he contended that the fear arose from the heightened security situation following the Easter Sunday bombings, including the application of the curfew and monitoring by Sri Lankan authorities. The appellant submits that the Authority failed to give proper, genuine and realistic consideration to this claim. 30 I am unable to accept the appellant's contention. 31 The Authority had regard to the submissions advanced by the appellant. At [21] it accurately summarised his claim in this respect: 21 The applicant provided post-SHEV interview submissions to the Department. He confirmed he was concerned that the recent bomb blasts made it particularly unsafe for Christians; that he had weapons training and was threatened by the Karuna Group and expected the authorities would be aware of his profile; and that he had a family connection to the LTTE through his cousin. He feared he was likely to be identified as a former LTTE member who was detained and received training, could be sent to rehabilitation which may be for some time and subject to monitoring on release. As an ex-combatant he said he would face discrimination. The recent bomb blasts and curfew in Batticaloa made him fearful to return there. He also feared, as the Karuna Group assisted the former Rajapaksa government to identify former LTTE members, that as there was a likelihood that Rajapaksa may return to power he would again be threatened with violence, harm and face extreme hardship. (Emphasis added.) 32 The italicised passages demonstrate that the Authority was cognisant of the claim advanced and that it extended to a claim to fear harm as a Christian. It was not necessary for it to identify all aspects of that claim. At [26] the Authority concluded that the appellant was not of adverse interest to the Sri Lankan authorities. At [46]-[47] the Authority considered not only the appellant's specific claim to fear harm upon his return, but also the more general claim. Although all aspects of that claim were not repeated by the Authority in setting out its conclusions, I do not consider that any basis has been established to infer that the Authority overlooked or failed to consider the entirety of the claim; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ). 33 Accordingly, the primary judge did not err in dismissing the grounds presently raised on appeal. Ground 1 must be dismissed.

4. GROUND 2 - FAILURE TO CONSIDER A CLAIM 34 In Ground 2, the appellant contends that the Authority failed to consider the claim advanced in his post-interview submissions regarding his concerns arising from the "imminent return to power" of Mahinda Rajapaksa as the President of Sri Lanka. 35 The submission advanced before the Authority was: In addition, when President Rajapaksa was president prior to 2015 he was threatened by Karuna group who assisted the Rajapaksa government to identify former LTTE members. Now that there is a likelihood former President Rajapaksa may be returned to power, he will again be threatened with violence, harm and will face extreme hardship. 36 This ground of appeal found no expression before the primary judge. Accordingly, the appellant requires leave to raise it for the first time on appeal; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ). 37 In my view this ground has insufficient prospect of success to warrant the grant of leave. I have set out [21] of the reasons of the Authority above. The passage emphasised in bold in that paragraph makes plain that the Authority was aware of the claim advanced. It is true that the Authority did not make specific findings in relation to this claim. 38 However that is for the good reason that the Authority rejected his clams that the Karuna Group pressured and threatened him to join them, to leave the Association of Barbers, to give them a vehicle or that he was beaten by members of that group. It concluded that the appellant was not a person of adverse interest to the Sri Lankan authorities or to the Karuna Group (at [26]). I reject the contention advanced by the appellant that his claim extended beyond any the link between President Rajapaksa and the Karuna group. The wording of his submission does not permit that construction.

5. DISPOSITION 39 For the reasons set out above ground 1 of the appeal must be dismissed. I refuse leave to the appellant to rely on proposed ground 2. The appellant must pay the Minister's costs of the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.