EVD19 v Minister for Immigration, Citizenship and Multicultural Affairs

Summary of Reasons 13 The Authority in its Reasons referred to the nature of the appellant's claims and confirmed it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act, which included approximately 185 pages of news articles and other country information provided by the appellant in support of the visa application. The Authority relied on this information to find that the appellant is of Tamil ethnicity, from Mannar in the Northern Province and adheres to the Catholic faith (paras 4-8 of Reasons). 14 The Authority relied on a Department of Foreign Affairs and Trade (DFAT) report dated 23 May 2018 (2018 DFAT Report) and a United Kingdom Home Office report dated 15 June 2017 (2017 UK Home Office Report) to find that Tamil ethnicity does not independently warrant international protection. The appellant had not claimed that any person he knows suffers from ongoing harm merely for being Tamil or residing in the Northern Province (paras 36, 38 and 40 of Reasons). 15 In relation to the appellant claiming protection on the basis that he was a fisherman, the Authority considered a range of country information about the position of young male Tamil fisherman, including the 2018 DFAT Report, 2017 UK Home Office Report, a United Nations High Commissioner for Refugees report dated 21 December 2012 (UNHCR 2012 Report) and a DFAT report dated 29 November 2012. It accepted that the appellant worked as a fisherman in Sri Lanka, but found the appellant's claims of fear of harm and persecution to be very vague and predicated upon his claims that he had links to the LTTE due to having access to a fishing boat. The Authority found that there was no information before it to conclude that the appellant would be targeted merely because he was a fisherman or that the appellant experienced harm from Sri Lankan authorities whilst working as a fisherman. The Authority was not persuaded that the appellant would face a real chance of harm arising from his status as a young male Tamil fisherman from the Northern Province, and was not satisfied that the appellant has a well-founded fear of persecution based upon this status (paras 5, 10, 20, 33-44 of Reasons). 16 As to the appellant's alleged support of the LTTE, the Authority did not accept that the appellant or his family have any links to the LTTE and are of interest to the Sri Lankan authorities. It found the appellant's evidence to be unconvincing and untruthful in relation to the events concerning the support the appellant's family allegedly provided to the LTTE during the civil war, and stated that the appellant exaggerated these accounts to portray his family as having close links with the LTTE. Further, the Authority noted that the appellant said that he and his family were never members of the LTTE (paras 11-13 of Reasons). 17 The Authority found in relation to the post war LTTE transportation claim that the appellant's evidence highlighted inconsistencies which it addressed at paras 14-21 of its Reasons. It relied on the UNHCR 2012 Report and 2018 DFAT Report to address which personal profiles may become of interest to the Sri Lankan authorities. The Authority doubted that the appellant, his father or his uncle were seriously suspected of having LTTE links as claimed because the appellant's claims shifted over time to strengthen his claims, and the appellant did not advance any further personal involvement with the LTTE or with the wider separatist movement (paras 22-26, 37 of Reasons). 18 The Authority found that religious tensions exist in Sri Lanka, however, no country information indicated that Muslims are targeting Catholics for any harm due to religious reasons and relevantly found: 48. … I accept he and some friends fought with Muslims from neighbouring villages in 2010 or 2011. He has not suggested that any member of his family who remains in Mannar has had any problems with local Muslims. The applicant has not indicated when he was involved in conflict with Muslims, or what led to this altercation beyond a very brief confrontation. He has not indicated that the altercation was ongoing, … 19 The Authority found to the effect that given the passage of time, the lack of consequences for other family members in his area and the isolated nature of the event, it did not accept the appellant's claim that he would face harm from the Muslim population generally or specifically from those in neighbouring villages (para 49 of Reasons). 20 The Authority accepted that the appellant departed Sri Lanka in breach of the Immigrants and Emigrants Act in 2012 and would be exposed to relevant processing at the airport. The Authority concluded the appellant would plead guilty to this offence and may be charged under the Immigrants and Emigrants Act. Despite this finding, it was satisfied that the appellant was not of any interest to Sri Lankan authorities now or at the time of his departure. After referring to a DFAT report dated 24 January 2017 and the 2018 DFAT Report, the Authority found that the appellant would not suffer a custodial sentence because passengers on people smuggling ventures are not held in custody for this reason. The Authority was not persuaded that any fine or short period of detention at the airport would amount to serious harm, and so was not satisfied that the appellant would face a real chance of serious harm arising from his illegal departure if returned (paras 50-56 of Reasons). 21 The Authority relied on the 2018 DFAT Report to state that refugees and failed asylum seekers face practical challenges to successful reintegration in Sri Lanka. However, it concluded that these difficulties, if they were experienced at all by the appellant, do not amount to serious harm (paras 57-59 of Reasons).

Authority's conclusion 22 The Authority concluded as to the appellant's refugee status that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act and did not have a well-founded fear of persecution under to s 5J. Consequently, the Authority determined that the appellant was not eligible for protection pursuant s 36(2)(a) of the Migration Act. 23 In relation to the complementary protection provisions in s 36(2)(aa) (real risk of significant harm), the Authority concluded: 63. I have found that that due to his illegal departure, the applicant will probably be identified on arrival at the airport, arrested and charged with breaches of Sri Lanka immigration law if returned to Sri Lanka. He will likely be detained for several hours at the airport and this detention may last for up to two days; he will likely be subject to a fine and associated costs and bail. He may face a period of monitoring upon return to his home in Mannar in the north of Sri Lanka. He may face some social stigma and a number of everyday challenges getting re-established. However, I am not satisfied that any of these issues, either individually or cumulatively would amount to torture, the death penalty, or would result in any of the applicant being arbitrarily deprived of his life. I am not satisfied that these issues amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined under s.36(2A) of the Act. 64. I have otherwise found that the applicant would not face a real chance of harm arising from the protection claims he has put forward, or from any combination of his claims. As 'real chance' and 'real risk' have been found to meet the same standard, it follows that the applicant does not face a real risk of significant harm on any of these bases if returned to Sri Lanka. Complementary protection: conclusion 65. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa). 24 Accordingly, the Authority affirmed the decision under review.

FCCA grounds of review and decision 25 The appellant was self-represented in the proceedings before the FCCA, and the grounds of review were expressed in the following general terms: 1. The IAA didn't give enough weight to relevant information about the persecution of young Tamil men. 2. The IAA didn't listen to my story and my fears of what would happen to me when I return. 26 During the hearing, the primary judge provided the appellant with an opportunity to elaborate on his grounds of review and to advise if the Authority 'did anything wrong', citing DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] (Colvin J). The primary judge observed that he undertook a more active role in his review of the Reasons, and did not confine himself to the appellant's grounds, citing EII17 v Minister for Immigration and Border Protection [2018] FCA 1863 at [16] (Flick J). 27 The appellant also sought to tender a document (labelled Exhibit 2 by the primary judge), being a complaint made by an unknown person to the Sri Lankan Human Rights Commission on 23 August 2019. According to the primary judge, the appellant wished to tender the document to illustrate the (then) current circumstances in Sri Lanka and to explain what would happen to him if he were to be returned. 28 Taking into account the manner in which the hearing before the primary judge unfolded, I will address the grounds and discrete matters raised before or addressed by the primary judge as grounds 1 and 2, and as contentions 3-6. The issues to which those grounds and contentions relate are as follows: (a) ground 1 - the weight given to country information about the persecution of young Tamil men; (b) ground 2 - the appellant's story and fears of what would happen to him if he is returned; (c) contention 3 - the absence of a hearing before the Authority; (d) contention 4 - a fight between the appellant and Muslims in neighbouring villages not taken into account; (e) contention 5 - the appellant's support and transportation of LTTE members not taken into account; and (f) contention 6 - Exhibit 2 should be taken into account by the primary judge.

Ground 1 29 The primary judge stated that he interpreted the first ground as a claim that the Authority did not give enough weight to certain country information, and in particular the 185 pages of information that the appellant provided in his protection visa application (PJ [59]-[60]). 30 His Honour observed that the Authority had express regard to the documents submitted by the appellant (PJ [61]) but found that this evidence was dated, and so the Authority relied on more recent information, including the 2018 DFAT Report, to address the appellant's claims about the circumstances in Sri Lanka. His Honour held that it was entirely reasonable for the Authority to proceed as it did and make relevant findings having regard to the identified country information, because the selection of information used to inform an Authority's finding and the relative weight afforded to that country information is a matter for the Authority: PJ [59]-[54], citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. The primary judge held that the Authority had considered the factors said to give rise to attention from officials according to the relevant country information, and found that the appellant did not claim or was not accepted by the Authority as falling into any of those categories warranting protection (PJ [63]). 31 Having regard to these matters, the primary judge found that this ground rises no higher than a disagreement with the Authority's decision, which does not give rise to jurisdictional error.

Ground 2 32 The primary judge proceeded on the basis that the appellant's second ground involved a claim that either the Authority failed to properly consider all of the appellant's claims or that the Authority did not 'listen to him'. The latter is addressed as contention 3 below. 33 The disposition of the former was dealt with by the primary judge at PJ [72]-[77]. His Honour had regard to the way the Authority dealt with all the persecution claims by reproducing the Authority's summary of the appellant's claims and comparing that summary with the appellant's claims made in his protection visa application. The primary judge held that the Authority identified all of the claims advanced by the appellant in his statement before the delegate, observing also that it had included significant detail relevant to those claims in its decision (PJ [75]-[76]). 34 The primary judge found that nothing in the evidence before him suggested that the Authority did not listen to the appellant. Rather, his Honour described the Authority's engagement with the appellant's claims as active, comprehensive and forensic. The primary judge found that the Authority made factual findings on each of the appellant's claims based on the written claims, oral evidence and supporting documents provided by the appellant in his protection visa application as well as consideration of relevant country information. The Authority's findings were logical and rational. For example, when it did not accept a claim advanced by the appellant it provided reasons for doing so, such as finding the appellant's evidence 'vague' or 'unconvincing', and so providing a probative basis for its findings that it had concerns or doubts about the appellant's claims. The Authority's consideration of whether the appellant faces a risk or chance of harm involved an active engagement with the appellant's evidence and relevant country information (PJ [76]). The primary judge accordingly dismissed ground 2.

Contention 3 35 In relation to the alternative claim that the Authority failed to 'listen to' the appellant, the primary judge proceeded on the basis that this could be interpreted as an allegation that the appellant was not invited to attend a hearing. The primary judge dismissed this claim, observing that s 473DB of the Migration Act (within the fast track regime provisions) requires the Authority to make a decision on the papers (PJ [78]).

Contention 4 36 It is apparent that during the hearing before the primary judge, the appellant contended that the Authority did not consider his claim concerning the difficulty he faces from Muslims in Sri Lanka. The primary judge observed that this was the claim previously remitted to the Authority for reconsideration and that the Authority, on its consideration, carefully and thoroughly addressed the appellant's claim to fear harm from Muslims (PJ [68]-[69]). His Honour noted that the Authority had made factual findings and concluded that the appellant does not face harm from those he previously had conflict with or Muslims generally in Sri Lanka (PJ [70]). The primary judge concluded that it was open to the Authority to reach such conclusions based on the factual findings it had made and consideration of the significant amount of country information it had referred to. 37 For completeness, I note that in the context of this claim, the primary judge reproduced in his reasons the paragraph in the Authority's decision in which it stated that it accepted that the appellant was involved in a fight with Muslims from neighbouring villages in 2010 or 2011 (which I have partially extracted at [18] above). The Authority reasoned that the altercation had not been ongoing and said that on the appellant's own evidence the altercation appeared to be a 'one-off' (PJ [69]).

Contention 5 38 The primary judge also addressed the Authority's treatment of the appellant's claims in relation to supporting members of the LTTE both during and after the war. 39 As to the appellant's claims about support for the LTTE during the war, the Authority set out the claim but found it to be vague. The claim of providing logistical support had not been mentioned in the SHEV application, and the Authority found it to be unconvincing. The Authority was not satisfied that the appellant was telling the truth, and considered that the appellant had exaggerated his accounts to portray his family as having close links with the LTTE, and provided reasons for coming to this conclusion, including the absence of knowledge of any specific details. For example, the Authority referred to the appellant's claim that his family were said to have been supporting the LTTE during the period, but observed that the appellant made only vague assertions about the nature of the support and that he would have been a school boy or studying in Colombo at the time, so would have had no involvement in the events. 40 The primary judge expressly referred to this part of the Reasons (PJ [26]). The primary judge also found that the Authority had identified all of the claims advanced by the appellant, had included significant detail about them, and had made logical and rational findings on each, providing reasons when they were not accepted (PJ [75]-[77]). 41 In regard to the post-war assistance claim, the primary judge again referred to the relevant paragraphs of the Authority's decision where it set out in detail the appellant's claims. Relevantly, the primary judge referred (PJ [27]) to paras 14-17 of the Reasons which expressly dealt with and rejected claims that he transported LTTE members to India. The Authority found a number of problems with the appellant's account including inconsistencies between the appellant's evidence provided in his protection visa application and the evidence before the delegate. 42 The primary judge observed at (PJ [28]-[30]) that the Authority determined that there were difficulties in accepting the appellant's account. For example, the Authority referred to documents provided by the appellant that were apparently unrelated to his claim. It also observed the inconsistency between the appellant claiming that the Sri Lankan authorities employed oppressive coastal surveillance throughout his time as a fisherman, and his unconvincing evidence that Sri Lankan authorities 'did not notice' when asked how he, his father and uncle managed to transport so many LTTE members unnoticed (addressed by the Authority at paras 20-22 of its Reasons). 43 These matters were set out by the primary judge before he concluded that the Authority had identified all of the claims advanced by the appellant, had included significant detail about them, and had made logical and rational findings on each, providing reasons when they were not accepted (PJ [75]-[76]).

Contention 6 44 The primary judge observed that Exhibit 2 predated the Authority's decision but was not before the Authority. It post-dated the delegate's decision. The Authority confirmed in its Reasons that it had considered all of the materials received from the Secretary including the 185 pages of news articles and other country information received from the appellant as part of his SHEV application. No other materials from the appellant were received by the Authority. Had it been received, the Authority would have been required to assess whether it met the requirements of s 473DD of the Migration Act. However, the primary judge concluded that as Exhibit 2 was not before the Authority, it was not relevant to assessing jurisdictional error on the part of the Authority (PJ [84]-[87]). 45 In summary, the primary judge, having considered all of the above grounds and contentions, concluded that no jurisdictional error on the part of the Authority was established, and dismissed the appellant's application.

Appeal to this Court 46 The notice of appeal relied on by the appellant sets out one ground, expressed in very general terms, to the effect that the primary judge erred in his view of the Authority's assessment of the evidence before it. 47 The Minister fairly submitted that I could proceed on the basis that the alleged error on the part of the Authority, having regard to the matters raised before the primary judge, may be summarised as allegations of jurisdictional error flowing from similar grounds of review to those which were before the FCCA. 48 The appellant did not file written submissions. During the hearing, the appellant conveyed to me that he sought to rely on similar grounds as before the primary judge. He also sought to tender documents before this Court (MFI-1) in support of his claim. The documents were said to demonstrate that there are still issues in Sri Lanka for a person in his situation who returns. 49 I have approached this appeal on the basis that the appellant seeks in effect to amend his grounds to incorporate the two grounds and four contentions considered before the primary judge, but in support of an argument that the primary judge erred by failing to find that the Authority erred as alleged. Accordingly, I have addressed these matters as six grounds of appeal below.

Appellant's submissions 50 During his oral submissions, the appellant addressed the merits of his application for protection, reiterating that he generally fears harm upon return because there are still 'things happening against Tamils in Sri Lanka', and currently young Tamil lives are being threatened and he fears for his life if returned. The appellant also raised the issue of his identity as a fisherman and that the Authority had not accepted that he transported LTTE members especially after the war when 'lots of LTTE cadre were moved out of Sri Lanka using the boats'. The appellant stated that he did engage in those types of activities and the Authority was wrong in not accepting that he had provided transport to the LTTE. The appellant further stated that the Authority did not accept his claim that he was involved in a fight with Muslims from neighbouring villages. The appellant did not understand how or why the Authority came to this decision. 51 It was understandable in his circumstances that the appellant was not able to develop his submissions regarding jurisdictional error. However, I have read the Authority's decision bearing that in mind, and note that the Minister's written submissions properly pre-empted potential arguments that the appellant might raise, despite the general nature of his notice of appeal. 52 Whilst the appellant's submissions are encompassed by the matters addressed below, it is apparent that the appellant in effect seeks merits review of the Authority's decision. For the following reasons I do not consider that any of the matters raised by the appellant reveal jurisdictional error on the part of the Authority such that the primary judge should have allowed the review application. I will deal with them in turn, and I will also address the additional issue concerning MFI-1.

Ground 1 53 The primary judge correctly observed that it is a matter for the Authority as to the weight to be given to particular country information (NAHI at [11]-[13]). The Authority considered the country information provided to it by the appellant. It was reasonable for the Authority to take the (at that time) recent 2018 DFAT Report into account and there was nothing erroneous in the primary judge's treatment of that ground of review.

Ground 2 54 The Minister submitted that this ground amounts to a general submission that Authority failed to consider the persecution claims that were before it. However, the primary judge referred to the statement the appellant made in his protection visa application and compared those claims with those identified by the Authority with some care. His Honour found that the Authority's Reasons encompassed all of the claims advanced by the appellant in his statement and the Authority included significant detail as relevant to those claims (PJ [75]-[76]). The primary judge rightly held that the Reasons encompassed all of the appellant's claims.

Ground 3 55 The suggestion of error arising from the appellant not being invited to attend a hearing was addressed by the primary judge, who properly referred to s 473DB of the Migration Act that requires the Authority to make a decision on the papers. There were no additional matters to which the primary judge needed to turn his mind to deal with that ground of judicial review, as the submission was not developed in any manner by the appellant. The Authority is not bound to invite an applicant to participate in an interview, even where issues of credibility arise: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; (2018) 267 FCR 69 at [74] (Collier, Middleton and Rangiah JJ).

Ground 4 56 The issue of the 'fight' was dealt with by both the Authority and by the primary judge. In fact, the Authority accepted that a fight occurred. However, because it found the evidence rose to no more than evidence of a one-off fight, the Authority was not persuaded that it revealed a risk that amounted to fear of serious harm from fights that may occur between Muslims and Catholics generally. The primary judge observed that the evidence of the fight was accepted. No error in the Authority's or the primary judge's reasoning is revealed.

Ground 5 57 The primary judge had regard to the Authority's decision in relation to alleged support of the LTTE both during and after the war. I have summarised this approach at [38]-[43] above. 58 The primary judge set out the claims in detail and properly considered the reasons why the Authority had rejected the claims. No error is revealed in the primary judge's conclusion (PJ [75]-[76]) that the Authority had properly summarised the appellant's claims and had engaged with them.

Ground 6 59 The primary judge's reasons in relation to the inadmissibility of Exhibit 2 were correct. The document post-dated the delegate's decision (see further below) and was not drawn to the attention of the Authority.

MFI-1 is not admissible 60 The appellant sought to tender on the appeal eight news articles dated between 28 September 2023 to 10 December 2023. 61 Given the dates of those documents, they were not before the Authority in the making of its decision dated 30 October 2019 and they were not before the primary judge. Leave to adduce this evidence is refused. The evidence is irrelevant to the question whether the primary judge erred and it is irrelevant to the question whether the decision of the Authority is attended by jurisdictional error. 62 So much was explained in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28] (Beach, Thawley and Cheeseman JJ), where the Full Court of the Federal Court observed as follows: The question whether the IAA's decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision. This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] HCA Trans 118: In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made and by Mortimer J in Parker v Minister for Immigration & Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 at [77] (see also at [60] per Griffiths and Perry JJ): The appellant's submission that the 'outcome' of the Minister's cancellation decision is, after the annulment, legally unreasonable misunderstands the Court's function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister's decision, that could not be the case. This aspect of the decision in Parker was, unlike other aspects of the decision, not doubted by the High Court in Minister for Immigration & Border Protection v Makasa [2021] HCA 1; 95 ALJR 117; 386 ALR 200, see in particular at [59]. 63 See also EGZ17 at [38]; BTQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 382 at [31] (Kenny J); Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490 at [71]-[73] (Katzmann J); and more generally MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [29]-[30].

Disposition 64 It follows that the appellant has not established error on the part of the primary judge in dismissing the review application, and the appeal must be dismissed with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.