EGQ17 v Minister for Immigration, Citizenship and Multicultural Affairs

Consideration 33 It is convenient to address ground 2 before ground 1. In my view, the primary judge was correct to reject that ground of appeal. The Authority's reasoning was not unreasonable, illogical or irrational. 34 The Authority had regard to the following facts and circumstances: (a) The Authority accepted that the appellant's sister was forcibly recruited into the LTTE in 1995 and died in 1998 and that the appellant's brother was forcibly recruited into the LTTE in 1990 and died in 2009 (Reasons [18]). (b) The Authority found that the Sri Lankan authorities are aware of his brother's death (given the existence of a death certificate) (Reasons [20]). (c) While, in the past, the appellant and other members of his family have been questioned and threatened by the CID, army and/or EPDP, the applicant and members of his family have not been beaten, tortured or detained by the authorities (Reasons [22]). (d) The appellant's family is not currently being monitored by the Sri Lankan authorities (Reasons 24]). 35 Based on those facts and circumstances, and the matters stated in the DFAT report (and having considered The Guardian article), the Authority reached the following conclusions for the following reasons: 26 I do not accept that the applicant would be identified as a person with close family links to former LTTE combatants if he returned to Sri Lanka. While the applicant's brother and sister were former LTTE combatants, they have been dead for 19 years in the case of the sister and eight years in the case of the brother. I have previously found that these deaths are known to the authorities. The fact that the applicant's brother and sister are deceased suggests that their LTTE activities, and the applicant's links to them, would no longer be the subject of concern by the Sri Lankan authorities. 27 Given my findings relating to the absence of past harm to the applicant, and in light of the information contained in the DFAT report, I consider there to be only a remote and therefore not a real chance the applicant will face serious harm at the hands of the CID, army and/or EPDP now or in the reasonably foreseeable future if he returns to Sri Lanka. I am also mindful that the CID, army and/or EPDP did not take the opportunity to subject the applicant to serious harm in the three year period between the end of the war in 2009 and the applicant's departure from Sri Lanka in 2012, and have not subjected the applicant's family to such harm up until the present. I have considered the report from The Guardian provided by the applicant. However, I consider the DFAT report to be more reliable, noting that the DFAT report is consistent with the other country information in the referred material including from the US Department of State and the UK Home Office. 28 In summary, I am not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion due to his Tamil ethnicity, his deceased brother and sister's involvement with the LTTE and/or his residence in a former LTTE controlled area. I reach that conclusion having regard to the information that there has been a significant decrease in the monitoring and harassment of Tamils, and that the applicant does not fall within any of the categories of person identified by the UNHCR as needing protection. The country information in the referred material indicates that conditions for Tamils have materially changed in the five years since the applicant left Sri Lanka. 36 In my view, the foregoing reasoning is not unreasonable, illogical or irrational. The conclusions were open to the Authority on the material before it. To the extent the issue was raised on the appeal, I discern no error in the Authority's application of the "real chance" test as stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. 37 In my view, the primary judge was also correct to reject ground 1. The Authority's Reasons demonstrate that it read, identified, understood and evaluated the appellant's representations. The appellant's criticisms of the Reasons can properly be seen as a disagreement with the Authority's evaluation and an invitation to the Court to substitute its own evaluation. That is not permissible. 38 Having addressed the question whether there was a real risk that the appellant would be perceived to be linked to the LTTE, the Authority considered a number of other claims made by the appellant and then addressed the claims concerning illegal departure from Sri Lanka and returning as a failed asylum seeker. 39 In relation to illegal departure, the Authority accepted that the appellant departed Sri Lanka without a passport and, for that reason, had committed an offence under the Sri Lankan Immigrants and Emigrants Act 1949 (Reasons [41]). The Authority then summarised the DFAT report information concerning the consequences that would flow to a person in the appellant's circumstances. The appellant did not contend that the summary was inaccurate. On the basis of that information, the Authority concluded as follows (citation omitted): 45 On return to Sri Lanka, I find the applicant would likely be charged and fined under the IAEA and then released. In the event that the applicant elected to plead not guilty to the offence under the IAEA, he would either be granted bail on personal surety or a family member. There is no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face any chance of imprisonment, but it is likely that he will be fined. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face such a period of detention or imprisonment. 46 I note the country information indicates that while custodial sentences are not levelled against returnees, a person charged under the IAEA may, in some instances, be detained for several days pending an opportunity to appear before a magistrate. I note the Australian courts have confirmed that whether a loss of liberty amounts to serious harm involves a qualitative judgment, involving the assessment of matters of fact and degree - including an evaluation of the nature and gravity of that loss of liberty. I have considered whether a detention of several days would constitute serious harm. While I accept that conditions in Sri Lankan prisons are poor due to a lack of resources, overcrowding and poor sanitation, I find that any questioning and detention the applicant may experience would be brief and would not constitute serious harm as inexhaustibly defined in the Act. 40 The appellant's complaint is to the effect that the Authority did not consider the risk that the appellant might be detained and tortured while in prison. I reject that complaint. It is clear that the Authority considered that claim in light of the available country information and reached the conclusion that there was no real prospect of that occurring. That is the import of the Authority's conclusions at Reasons [45] and [46]. 41 In relation to the appellant being a failed asylum seeker, the Authority accepted that the appellant would be so regarded upon return to Sri Lanka (Reasons [49]). Based on the information in the DFAT report, the Authority concluded that there is not a real chance that the appellant would be harmed for that reason (Reasons [49]). The appellant was critical of the brevity with which that issue was addressed in the Reasons, arguing that the brevity indicated that there had been insufficient consideration. I disagree. Having regard to the content of the DFAT report, the Reasons provide a sufficient basis for the Authority's conclusion and demonstrate proper consideration of the claim. 42 As to a cumulative assessment of the appellant's claims, the Authority expressed the following conclusion: 52 I have had regard to all of the evidence before me and I have considered the applicant's claims individually and cumulatively, as well as considering the personal circumstances of the applicant. I am not satisfied the applicant has a well-founded fear of persecution for reason or combination of reasons of his race, religion, nationality, membership of a particular social group and/or political opinion now or in the reasonably foreseeable future, if he returns to Sri Lanka. 43 The appellant again criticised the brevity of that conclusion, arguing that it displayed insufficient consideration of the appellant's claim cumulatively. 44 The Authority's obligation to consider the claims advanced by the appellant extends to considering the claims cumulatively. That is, in considering the claims advanced, the Authority is obliged to consider whether the appellant may face a risk of harm by reason of a combination of, or the cumulative effect of, factors or circumstances arising from the claims. As explained by French J (as his Honour then was) in W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]: It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant - Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan's case these were described, in the submissions put to Katz J, as "risk factors". They were causative factors which might collectively engender the relevant risk. That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant's submissions. Authorities cited on behalf of the applicant did not cast much light on the submissions in this respect. The observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate "...consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were returned to China". 45 In many circumstances, though, a cumulative assessment will not produce any different result. There may be no interrelationship between the claims, or the rejection of the individual claims as a matter of fact will lead to a conclusion that there can be no "cumulative effect": see for example Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32]-[34] (Gilmour, Markovic and O'Callaghan JJ). In my view, that is the basis of the Authority's conclusion in the present matter. The Authority properly gave consideration to the appellant's claims cumulatively, but found that the appellant did not have a well-founded fear of persecution. In my view, that conclusion followed logically from the Authority's rejection of the appellant's individual claims to fear harm by reason of the appellant's family links to the LTTE, and his return to Sri Lanka as an illegal emigrant and failed asylum seeker. 46 The Authority's reasoning with respect to the complementary protection criteria was stated relatively briefly. That was because essentially the same issues arose in that context and the Authority recorded that it reached the same conclusions (see Reasons [57] and [59]). I reject the appellant's argument that the Reasons evidenced inadequate consideration of the claims.

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Judgment (7 paragraphs)

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Legislation Cited (2)

Cases Cited (16)