Federal Court of Australia

BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived at the Cocos (Keeling) Islands in May 2013 as an “unauthorised maritime arrival” (within the meaning attributed to that phrase by the Migration Act 1958 (Cth) (the Act)).

2    In August 2013, whilst in immigration detention, the appellant participated in an “Arrival Interview” with an officer of the Department of Immigration and Citizenship (as the department was then known).

3    In April 2017, the appellant lodged an application for a Safe Haven Enterprise (Class XE) Visa (SHEV). The application outlined a series of protection claims which are summarised at [14] below.

4    In August 2017, the appellant attended another interview with a delegate of the Minister, this time in relation to his SHEV application (SHEV Interview). It will be necessary to discuss some of the appellant’s responses in this interview and the Arrival Interview in due course.

5    By letter dated 17 August 2017, the appellant, assisted by his migration agent, put further matters to the delegate, including the following:

Identical Ligature scarring on both feet

[The appellant] mentioned during his SHEV interview that he still has the scars from being hung by his ankles while he was a prisoner in the Sri Lankan Army camp in Cheddikulam. We ask you give consideration to the almost identical ligature marks on both of his feet and ankles, which may be suggestive of similar, if not the same type of trauma, to both of his feet/ankles at the same time and we submit that even in the absence of undeniable evidence, the scarring could be consistent with being hung by his feet with fencing wire or similar binding for an extended amount of time.

6    In November 2017, a delegate of the Minister refused to grant the appellant a visa on the ground that Australia does not owe him protection obligations. The delegate considered that the appellant did not have a well-founded fear of persecution in Sri Lanka and did not, therefore, meet the relevant definition of refugee under the Act. In considering the complementary protection criterion, the delegate decided that there was not a real risk that the appellant would suffer significant harm if he were removed from Australia to Sri Lanka.

7    The decision of the delegate was affirmed by the Immigration Assessment Authority (IAA) in February 2018.

8    In November 2019, the Federal Circuit Court dismissed the appellant’s application for judicial review of the IAA’s decision: BHD18 v Minister for Home Affairs & Anor [2019] FCCA 3354. The appellant appeals that decision in this Court.

9    The appellant’s notices of appeal in the Federal Circuit Court and in this Court contain one ground of appeal, namely that some of the IAA’s findings of fact were not open to it on the evidence before it and the errors in those factual findings “infected” the IAA’s consideration of the appellant’s claim. The appellant in his notice of appeal in this Court provided three particulars in support of the ground. The second and third particulars were abandoned by the appellant at the hearing of this appeal. Particular 1 (the sole remaining ground) was phrased in the notice of appeal as follows:

Particulars 1

The IAA at [10] CB 203 said:

In a submission provided by the applicant’s representative after the SHEV interview it was submitted for the first time that the applicant still had scars from being hung by his ankles while he was a prisoner in the SLA camp and that the ligature marks on both of his feet and ankles might be consistent with his claimed torture of being hung by his feet with fencing wire or similar binding for an extended period of time. No photos of the scarring were provided and having listened to the audio, it does not appear the applicant showed the scarring to the delegate during the SHEV interview.

In saying this, the IAA failed to take account the applicant’s following evidence:

(a) SHEV interview transcript at page 3 line 15. The applicant said:

I still have marks on my body

(b) SHEV interview transcript at page 4 line 30 to 40. The applicant said:

They were asking me where the LTTE is hiding and their locations, they were beating me. Since I didn’t tell them anything, they hung me upside down and they beat me. I still have marks and injuries on my feet. They burned a rope and burned my thighs as well.

Burnt my thighs with the rope. The main questions they were asking were the locations of the LTTE. They kicked me as well. I was crying and I didn’t know what was happening. The next day morning when I woke up, I was on the floor. Part of my eye got injured and I couldn’t see through that. Then after I went to India, they put a lens for me inside my eye to fix it.

(c) The applicant’s agent’s post interview submissions at court book page 125 [set out at [5] above].

10    The erroneous finding is said to have “infected” the IAA’s consideration of the appellant’s case. The notice of appeal does not elaborate with any further detail how the so-called error infected the IAA’s consideration, though the appellant’s written submissions allege that the findings impacted upon the IAA’s assessment of his credibility.

11    The ground of review was put slightly differently by Counsel for the appellant during oral submissions, though Counsel insisted that the difference between the argument advanced in oral submissions and the one that was put to the primary judge was really a question of articulation.

12    The alleged errors, as phrased by Counsel for the appellant during oral argument, are that:

(1)    The IAA failed to appreciate that the appellant raised the scarring to his feet for the first time during the SHEV Interview; and

(2)    The IAA failed to appreciate that the delegate accepted that the appellant “may have some scarring to his feet”.

Counsel for the appellant submitted that this constituted jurisdictional error because it amounted to a failure by the IAA to consider important evidence in the sense discussed by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99.

13    Before turning to the relevant legal principles and the submissions advanced by both parties, it is necessary to consider the relevant parts of the IAA’s reasons and their treatment by the primary judge.

The IAA’s decision and reasons

14    The IAA commenced its reasons by summarising the appellant’s claims for protection (at [5]):

The applicant’s claims can be summarised as follows:

•    He was born in the Raknapura District in Sri Lanka in 1975 and relocated with his family to Vavuniya five years later and then fled Sri Lanka for India in 1985 after his father’s release from the Sri Lankan Army (SLA) who had arrested and tortured him because he had assisted the Liberation Tigers of Tamil Eelam (LTTE) by providing them with groceries from his store.

•    The family returned to Sri Lanka in 1988. His father opened another grocery store in Vavuniya.

•    In about June 1990 the applicant and his friend, ‘K’, who owned a pick-up truck, were intercepted by the SLA while on their way to deliver goods to the LTTE. K was shot dead by the SLA. The applicant was taken to the SLA’s camp detained for four days and tortured. He was questioned in relation to the location of the LTTE camps. On the fourth day the LTTE attacked the camp, the applicant was able to escape with the help of ‘S’ who was a member of the Eelam People’s Revolutionary Liberation Front (EPRLF) who worked as an interpreter for the SLA and had assisted with the earlier interrogation of the applicant. On arriving home his family went to another area in Sri Lanka and within three days the family had fled Sri Lanka for India in fear of their safety where the applicant remained until departing by boat for Australia on 20 April 2013.

•    In early 2013 he was involved in a small protest in the refugee camp in India relating to the passing of the new constitution in Sri Lanka.

•    He has not been home to Sri Lanka for more than 26 years. The Sri Lankan authorities are afraid of the resurgence of the LTTE and are very suspicious of Tamils who have lived abroad for some time. Having been away from the [sic] Sri Lanka for so many years he would find it difficult to mix back into society and the way he talks including his accent, is very different and would be noticeable which would make him a target. He would find it difficult to obtain employment as he would be considered an outsider. He only has a Sri Lankan birth certificate which will also bring attention to him. He has no family remaining in Sri Lanka and therefore no support structures in Sri Lanka on which to rely. Given his profile and that the feared persecution emanates from the State, there is no reasonable relocation alternative available to him.

•    He left illegally and will return a failed asylum seeker. After leaving the airport he will be most vulnerable to mistreatment by the authorities when he arrives home.

15    At [6]–[10] of its reasons, the IAA set out in summary form the appellant’s claims, addressed in the chronological order in which they were made by the appellant:

6     Based on the applicant’s documentary evidence, including his birth certificate and Tamil Nadu Refugee documentation, and his oral evidence, I accept the applicant is of Tamil ethnicity, was born [in 1975] in the Raknapura District, Sri Lanka where he lived until his family relocated to Vavuniya when he was about five years old and again to India when he was about 10 years old because of the conflict. I accept he has worked in various capacities in the past, including as a supervisor in a factory. I also accept his immediate family, including his wife and two children all currently reside in a refugee camp in India.

7    The applicant claims his parents were strong supporters of the LTTE during the conflict. His father used to supply groceries to the LTTE. When the SLA moved into their area in 1985 and discovered his father was assisting the LTTE, by providing them with reduced-price groceries, the SLA arrested his father and detained him for about a week and tortured him. When he was released his parents decided to relocate the family to safety in India where they remained from 20 November 1985 until 1988, when the Indian Government offered free safe passage back to Sri Lanka following peace talks between the Sri Lankan Government and the LTTE.

8    In the arrival interview the applicant mentioned that in 1990 his father had been arrested, detained for a week and severely mistreated by the Sri Lankan military when he went to visit their old family home in Madu and that on his release the family decided to flee to India for their safety. This information appears to relate to the second time the family moved to India in 1990 not the first time in 1985. In his SHEV application the applicant stated that in 1985 the SLA set up camp near their family shop and that this had caused problems for his father because he was helping the LTTE and that the SLA threatened to kill his father and his family and so the family relocated to India. No details were provided in the SHEV application about the circumstances of his father being threatened by the SLA in 1985 and the applicant did not state that his father was arrested, detained and mistreated by the SLA in 1985 in connection with this. The available country information reports that following the outbreak of the conflict in the mid-1980s thousands of Sri Lankan Tamils fled Sri Lanka for the Southern Indian State of Tamil Nadu. In light of the above, I accept the applicant and his family fled Sri Lanka in 1985 following the outbreak of the conflict in the mid-1980s, like many other Tamil families in Vavuniya did at that time. I do not accept the SLA threatened to kill the applicant’s father and his family at that time. I accept his family returned to Vavuniya Sri Lanka in 1988.

9    The applicant claims that after peacekeepers withdrew from Sri Lanka a few years later, violence again erupted in Sri Lanka. He claims his family provided grocery items to the LTTE through their store and that he and his friend, K, who owned a pick-up truck, would obtain a delivery point from the baker (who would be instructed by the LTTE) and then deliver the goods to that location. Sometime in June 1990, when delivering groceries to the LTTE, he and K were stopped by the SLA during one of their patrols. They were asked to get out of the truck and to walk back to the army camp. While walking back their hands were tied and their shirts were taken off. Their LTTE permit cards, allowing them to enter and exit LTTE areas, were discovered and confiscated. After about 1.5 kilometers they were told to get on their knees and K was shot dead. The other soldier pointed his gun to the back of the applicant’s head but another soldier stepped forward and ordered him to stop and pushed the applicant forward to the camp. On arrival he was charged under the Prevention of Terrorism Act (PTA) for supporting the LTTE and held in a room with a member of the EPRLF, S. S worked as an interpreter for the SLA. As the applicant had delivered groceries to the LTTE he was asked to provide details about the location of the LTTE camps, however he explained that he was given a different address each time at which point he was severely mistreated until he lost consciousness. He was held in the camp for four days, two days without food or water, on the fourth day the camp was attacked by the LTTE and S came in and told him to escape while the officers were defending the camp. He was barely able to stand and walk given his injuries but with the help of S he was able to escape and return home. When he got home his family decided to leave the area for Kallaru and then Madu and after three days in Madu they left for India on about 18 August 1990. He remained in India until 20 April 2013 when he left by boat for Australia.

10    In a submission provided by the applicant’s representative after the SHEV interview it was submitted for the first time that the applicant still had scars from being hung by his ankles while he was a prisoner in the SLA camp and that the ligature marks on both of his feet and ankles might be consistent with his claimed torture of being hung by his feet with fencing wire or similar binding for an extended period of time. No photos of the scarring were provided and having listened to the audio, it does not appear the applicant showed the scarring to the delegate during the SHEV interview.

(Footnote omitted.)

16    At [11]–[13] of its reasons, the IAA addressed the inconsistencies between the appellant’s evidence in his Arrival Interview, SHEV application and SHEV Interview:

11     In the arrival interview the applicant did not mention being arrested, detained and severely mistreated by the SLA in 1990 on suspicion of LTTE links, which had been raised in the SHEV application. In the arrival interview he also confirmed, in contrast with his with his [sic] claims in his later visa application, that he had never been arrested or detained by the police or security organisations, that the police and security or intelligence organisations did not impact his day-to-day life and neither he nor his family had ever been involved with the LTTE. The applicant also said during that interview that his family left Sri Lanka in 1990 because of the civil war and they could not live in peace. When he was asked if anything specific happened to his family to make them leave he said that in 1990 his father was arrested, detained and mistreated by the Sri Lankan military when he went to visit their old home in Madu and that on his release the family decided to flee to India for their safety. He did not say on what basis his father was detained by the military other than that it was when he visited their old home in Madu.

12     In the SHEV application the applicant explained he did not know his comments from the arrival interview would be looked at in assessing his claims and that he was told at the time not to go into detail and would be provided with another opportunity to provide his detailed claims. However, having listened to the audio of the arrival interview I note that the applicant was not told this, instead he was told “Briefly…..ok hold on, before we start this section I just wanted to explain that it is very important that you don’t give me lots of information at once because I’m going to be asking reasons why you left Sri Lanka and India and it is very important that I get exactly what you say”. I also consider he was given many opportunities to provide information regarding his claimed detention and mistreatment by the SLA in 1990 during the arrival interview. He was asked why he came to Australia to which he responded “The reason I just came to Australia because all these 23 years I was living as a refugee status so the parents they brought me to India, the children they have a good life at least, a peaceful life without fear, but 23 years I was living...like a refugee so that is the reason I just came here I don't want to live like a refugee in case I have to go to the good country”. He was then asked what he thought would happen if he returned to Sri Lanka and he said “I can't say if I go back to Sri Lanka I be alive”. He was then asked why he believed he would be killed if returned and he said “The reason because the people in 1990 they are having problems...if I go back ...who knows what they do...everyone knows what happened in Sri Lanka”. He was also asked why he believed the government would want to threaten or bother him and he said “Lots of people and friends they told what is happening in Sri Lanka and we just read what is happening in Sri Lanka and that is why I am scared”. The interviewer expressed some frustration stating that the applicant was still not telling her what would specifically happen to him if he returned and he said “because I have only the birth certificate that the Sri Lankan person but I don’t have any documents or nothing…so we need to prove in Sri Lanka that I don’t have anything except the birth certificate so I can’t go there”. I do not accept the applicant’s explanation that he was not given an opportunity to mention his claimed arrest, detention and mistreatment by the SLA in 1990 during the arrival interview.

13    In the SHEV interview, when the delegate raised concerns about the inconsistency of the applicant’s claims, he added for the first time that a person he met on the boat, ‘N’, told him not to tell the Australian authorities about any of his “connections with the LTTE and stuff”. When the applicant later heard of N’s deportation from Australia he feared the same would happen to him if he mentioned he was suspected of LTTE involvement by authorities in Sri Lanka. He also said that as a refugee in India he was never interviewed and did not expect to be interviewed when he arrived in Australia. This explanation is somewhat at odds with the explanation provided in the SHEV application. Inconsistently, in the arrival interview, when asked if he knew anyone on the boat he said “I only knew of one person called ‘B’, I didn’t know him before I just met him on the boat”. He did not mention N. In light of the above, I do not accept the applicant’s explanation that he failed to mention his arrest, detention and mistreatment in 1990s because he was told not to by N, who he met on the boat, that it might link him to the LTTE and he might be sent back to Sri Lanka.

17    In relation to the appellant and his father’s alleged mistreatment at the hands of the Sri Lankan Army (SLA), the IAA concluded (at [14]–[15]):

14    The applicant would have only been about 15 years old at the time of his claimed detention and mistreatment in 1990 by the SLA. I consider it more plausible that the father would organise to relocate his family to India after his own detention and mistreatment by the SLA as told by the applicant in the arrival interview. When the delegate raised concerns that the EPRLP interpreter, S, which he claims worked for the SLA, helped him to escape, the applicant said for the first time that S was a customer at their store which was why he helped the applicant escape. The delegate asked the applicant why he did not mention this in the SHEV application and the applicant provided what I consider an inadequate response, he said he was not specifically asked about it.

15    Given the central significance of the claim I consider if his claimed arrest, detention and mistreatment in 1990 were genuine, it would have been raised earlier. I accept the applicant’s father may have been arrested, detained and mistreated by the Sri Lankan military in 1990 when he went to Madu and that on release his family fled to India because of this. Given the short duration of his detention and that he was released after being interrogated, I do not consider the applicant’s father continued to be of interest to the authorities after his release or at the time of his departure for India. This is particularly so given reports in the available country information of the authorities using the broad powers of arrest and detention under the Prevention of Terrorism Act (PTA) during the war in a targeted and arbitrary manner to hold civilians, disproportionately Tamils, for pro-longed periods of time and without due process. On the totality of the evidence before me, I do not accept the applicant was arrested, detained and mistreated by the SLA in 1990 on suspicion of LTTE links. It follows that I do not accept the applicant has any charges pending against him in Sri Lanka.

(Footnote omitted.)

18    At [16]–[18], the IAA addressed the appellant’s claims relating to his: participation in a small protest in the refugee camp in India; accent; lack of Sri Lankan identification documents; lack of family based in Sri Lanka; illegal departure from Sri Lanka; and possible identification as a failed asylum seeker. The appellant does not challenge any of these findings.

19    The IAA then turned to consider whether the appellant constituted a refugee for the purpose of s 36(2)(a) of the Act and to consider in particular whether the appellant cannot return to Sri Lanka owing to a “well-founded fear of persecution”. After describing the statutory definitions of “refugee” and “well-founded fear of persecution” under the Act, the IAA stated (at [21]):

I accept the applicant has lived in a refugee camp in India since 1990. Following the detention, interrogation and mistreatment of the applicant’s father by the SLA. I do not accept that the applicant has any adverse security profile with the Sri Lankan authorities.

20    At [22]–[25], the IAA discussed the Sri Lankan country information before it, none of which is challenged by the appellant, and made two findings at [24] and [25] in relation to the appellant, based on this country information:

22    The country information before me indicates that there has been a change in the situation in Sri Lanka since the applicant’s departure in 1990 and particularly since the election of the Sirisena government in 2015. The Sirisena government has prioritised human rights and reconciliation and has made significant progress, including replacing military governors in the Northern and Eastern Provinces with civilians; returning some land held by the military; releasing some people held under the PTA; committing to reform the PTA; engaging constructively with the United Nations; as well as putting in place a number of symbolic changes. It is noted, the government has been more recently criticised for the slow progress in relation to some of these changes and for failing to repeal the PTA to date.

23    DFAT reports that the government remains sensitive to the potential re-emergence of the LTTE, noting expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. Those on a ‘stop list’ are those with an extant court order, arrest warrant, or order to impound their passport and those on a ‘watch list’ are those considered to be of interest because of criminal or separatist activities and are unlikely to be detained. DFAT also notes categories of persons identified by UNHCR in its 2012 guidelines to be potentially at risk, because of actual or perceived links to the LTTE, but I note this UNHCR information is now somewhat dated, well preceding the current change in government.

24     There are reports of “mopping up” operations still be being conducted by authorities against those considered remnants of the LTTE, relevantly including those who worked undercover outside the Vanni or hid overseas. However, I do not accept the applicant’s father or the applicant were of on-going interest to the authorities in connection with an adverse security profile when they left Sri Lanka 27 years ago in 1990.

25    The International Truth and Justice Project Sri Lanka (ITJP) reports of incidents in 2016/17 of the military and police continuing to abduct, unlawfully detain, torture and rape Tamils in Sri Lanka. In 2016 the ITJP reported of 21 cases of abduction and torture and as at the date of its report in 2017, it had reported three cases. Of the reported cases in the ITJP’s 2015 report, the victims were overwhelmingly low level LTTE cadres, LTTE child soldiers, had suspected links with terrorists or had been involved in low level political work for Tamil parties or in protests around human rights issues. While the applicant claims he was involved in a small protest at the refugee camp in India regarding changes to the Sri Lankan constitution I do not accept this brought him to the adverse attention of the Sri Lankan authorities.

(Footnotes omitted.)

21    At [26], the IAA then addressed the appellant’s claims that he would be persecuted by reason of him having lived in India for an extended period of time:

26    The country information reports that since 2011 almost 6,000 refugees have returned to Sri Lanka from Tamil Nadu and there are various initiatives that have been set up by the Ministry of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs in Sri Lanka to assist repatriating families, including monetary assistance and help with housing. In its 2017 report, DFAT state that since the 2015 change in government in Sri Lanka there has been an increase in Sri Lankan Tamils in Tamil Nadu repatriating and that while they speak a different dialect to Tamils in Sri Lanka and may experience difficulties obtaining identity documentation and accessing government or non-government assistance, with the exception of ex-LTTE members who would be monitored by authorities on return, there is no evidence they would experience official or societal discrimination upon their return. DFAT also report that Tamils without passports are able to enter the country on temporary travel documents issued by diplomatic and consular missions. The information before me does not suggest that the applicant’s residence in India and Australia for such an extended period, in the absence of any other profile would give rise to any risk of harm from the Sri Lankan authorities. I note the applicant’s concern regarding lack of documentation but I do note he is in possession of a birth certificate, enabling him to establish his identity.

(Footnotes omitted.)

22    The IAA further concluded (at [27] and [28]):

27    Taking into account recent country information and the applicant’s history and profile, I do not accept that there is a real chance the applicant would face harm through arrest, detention, interrogation or torture by Sri Lankan authorities because of his family’s past experiences in Sri Lanka, including his father’s brief detention and mistreatment 27 years ago or because the applicant has lived in India most of his life, now or in the reasonably foreseeable future, if he were to return to Sri Lanka.

28    The applicant has expressed concerns about difficulties finding employment on return, but I am not satisfied on the evidence before me that he will be denied employment for any reason in s.5J(1) of the Act; nor am I satisfied that his different accent will make him a target or give rise to a real chance of serious harm. I accept the applicant will be returning to a place where he has no immediate family and no established social network; I am not however satisfied on the evidence presented that this will give rise to a real chance of serious harm.

23    The IAA then at [29]–[33] considered how the appellant is likely to be treated on his return to Sri Lanka, acknowledging that the appellant is likely to be detained for a short period of time on his return and charged under the Immigrants and Emigrants Act 1949 for departing Sri Lanka illegally. At [29], the IAA noted:

29     I accept that on return the applicant may be identified by the authorities as a returning asylum seeker. While it is acknowledged DFAT does not routinely monitor the situation of returnees, DFAT assess that the risk of torture or mistreatment of the majority of returnees is low, including for those found to have departed illegally. The UK Home Office’s report indicates returnees may be ill-treated on their return if they have criminal or terrorist backgrounds or are otherwise wanted by the authorities for crimes other than merely departing the country illegally. The applicant has no such profile. I am satisfied that there is not a real chance the applicant will be detained, mistreated or otherwise harmed on his return to Sri Lanka by reason of him being a returning asylum seeker.

(Footnotes omitted.)

24    Finally, the IAA turned to consider whether Australia owed the appellant protection obligations under s 36(2)(aa) of the Act. In concluding that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a risk that the appellant will suffer significant harm, the IAA stated (at [37]–[38]):

37    For the reasons already discussed, I accept there is a real risk the applicant may be interviewed, charged for having departed illegally, fined and briefly detained, possibly in a prison, on his return to Sri Lanka. However, I am not satisfied that such treatment would amount to ‘significant harm’ as defined under s.36(2A). Based on the country information available, there is not a real risk the applicant would be arbitrarily deprived of his life or subject to the death penalty on his return or be subject to torture. Furthermore, the evidence before me does not support a conclusion that there is any intention by the Sri Lankan authorities to inflict severe pain or suffering, pain or suffering or to cause extreme humiliation. I am not satisfied the applicant faces a real risk of significant harm as a consequence of his illegal departure.

38    I have not accepted that the applicant faces a real chance of harm as a consequence of his Tamil ethnicity, his extended absence in India and then Australia, his participation in a small protest in India, his father’s experience, his lack of documentation or his having sought asylum abroad. ‘Real chance’ and ‘real risk’ involve the same standard. For the same reasons, I am also not satisfied the applicant would face a ‘real risk’ of significant harm. I accept that the applicant has concerns about returning to a country from which he has been absent for some 27 years. However I am not satisfied that he will be denied employment, or that his differing accent, and lack of social and family networks will result in a real risk of significant harm.

The Federal Circuit Court decision

25    The primary judge commenced his reasons with a summary of the matter to date and an explanation of the appellant’s ground of appeal and particulars (set out in part at [9] above).

26    At [39]–[44], the primary judge addressed the first particular, being the IAA’s understanding of the time at which the appellant raised the evidence of scarring:

39    The First Respondent submitted that, in circumstances, where the IAA expressly noted and engaged in a consideration of the submission that the Applicant’s scarring corroborated his claims of previous harm (CB 203, [10]), it is not appropriate for the Court to draw an inference that this claim was not considered: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]. The Court accepts that submission.

40    The Court, further, accepts that it is well established that a decision of an administrative merits reviewer, such as the IAA, must not be read with an “eye keenly attuned to error” and that a “common sense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the [decision-maker] was saying”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J (as he then was).

41    The Court is not satisfied that there was any relevant misunderstanding by the IAA of the Applicant’s evidence. The IAA found that the Applicant raised for the first time in submissions following the SHEV interview, with the particularity described in that submission (as referred to in paragraph 25 above), that he still had scars from being hung by his ankles and that such scarring might be consistent with the claimed torture. It is apparent that the IAA was cognisant that the claim that the Applicant had scarring had been discussed at his SHEV interview, in circumstances, where:

a)     The IAA, directly, referred to the paragraph in the post-interview submissions where it was stated, “[the Applicant] mentioned during his SHEV interview that he still has the scars from being hung by his ankles”: CB 125.

b)     The IAA, specifically, noted that it had listened to the audio recording of the SHEV interview with a view to confirming whether the scarring was shown to the Delegate during that interview: CB 203, [10].

c)     Furthermore, the IAA was correct to suggest that the formal submission that the scarring supported the claimed harm was first made by way of post-hearing submissions. At the interview, the Applicant’s submissions went no further than stating that:

“They took me, arrested me and took me to the camp and tortured me. I still have marks on my body”.

“Since I didn’t tell them anything, they hung me upside down and they beat me. I still have marks and injuries on my feet”.

42    The Court, further, accepts the submission of the First Respondent that:

a)     The Applicant provided no evidence that he had provided any photographs of the claimed scarring to either the Delegate or the IAA; or that he had showed the Delegate the scarring at the SHEV interview;

b)     Accordingly, it cannot be maintained that the statement that, “no photos of the scarring were provided and having listened to the audio, it does not appear the Applicant showed the scarring to the Delegate during the SHEV interview” was, factually, incorrect nor illogical or irrational;

c)     Furthermore, it was for the Applicant to provide his evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Lat (2006) 151 FCR 214;

d)     The decision maker is not required to make the Applicant’s case for him: Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.

43    The Court, further, accepts that the Applicant seeks that the Court engage in impermissible merits review. It was for the IAA to identify the material it found relevant to is reasoning and to give it appropriate weight: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13].

44    The Court also accepts that it was for the Applicant to provide his evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts. The decision maker is not required to make the Applicant’s case out for him. Further, the Court notes that it is not the role of the IAA to engage in a fact-finding mission. This is supported by ss.473DC(1) and (2) of the Act. Subsections 473DC(1) and (2) of the Act provide the following:

(1)    Subject to this Part, the IAA may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the IAA considers may be relevant.

(2)     The IAA does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the IAA may invite a person, orally or in writing, to give new information:

(a)     in writing; or

(b)     at an interview, whether conducted in person, by telephone or in any other way.

27    After discussing particulars 2 and 3, which are no longer relevant to this appeal, the primary judge concluded his reasons by stating that for a misunderstanding of evidence to constitute jurisdictional error that misunderstanding must result in an error of fact that infected the decision maker’s consideration of the appellant/applicant’s claim. In support of this proposition, the primary judge cited North and Lander JJ (with whom Katzmann J agreed) in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 at [28]:

However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC184; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.

28    The primary judge held that he was satisfied that there had been no identified infection of the decision of the IAA in terms of its consideration of the totality of the appellant’s claims and thus no jurisdictional error could be identified.

Relevant principles and consideration

29    There is no doubt that just because the alleged errors were factual enquiries does not mean they are precluded from constituting jurisdictional error: CRU18 v Minister for Home Affairs [2020] FCAFC 129 at [29]–[31]. However, an erroneous finding of fact will typically not amount, in and of itself, to jurisdictional error: CRU18 at [29] citing NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] (Heerey, Nicholson and Selway JJ). A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647–648 [130] (Crennan and Bell JJ)). Further, in order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision maker’s ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ); CRU18 at [37]. Where the impugned finding is but one of a number of findings that independently may have led to the IAA’s ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55]; CRU18 at [35]–[37].

30    Before considering whether the alleged error amounts to jurisdictional error, it is first necessary to consider whether the IAA actually made any error – whether factual or legal – at all. For the reasons that follow, we consider that the IAA did not make any erroneous findings in relation to the appellant’s scarring and the appeal should be dismissed on this basis.

31    The appellant submitted that the IAA failed to appreciate that the appellant raised his scarring in the SHEV Interview. In support of this, the appellant refers to the first sentence of [10] of the IAA’s reasons:

In a submission provided by the applicant’s representative after the SHEV interview it was submitted for the first time that the applicant still had scars from being hung by his ankles while he was a prisoner in the SLA camp and that the ligature marks on both of his feet and ankles might be consistent with his claimed torture of being hung by his feet with fencing wire or similar binding for an extended period of time.

32    The appellant accepts that this statement is true in a literal sense: the letter sent by the appellant’s migration agent after the SHEV Interview was the first time that the appellant had made an express submission that the scarring might have been supportive of his specific claims to have been tortured by being hung from his feet with wire. But the appellant points to the fact that there is no express mention in the IAA’s reasons of an appreciation that the evidence that supported the migration agent’s submission was raised at the SHEV Interview. The appellant says that this omission shows that the IAA failed to have regard to that fact or was mistaken as to the time at which the scarring was first raised.

33    With respect, the statement in [10] shows no misunderstanding of the evidence. The IAA did not find that the appellant failed to mention the scarring at the SHEV Interview. Whilst it would have been incorrect for the IAA to assert that the scarring to the appellant’s feet was first raised in the post-SHEV Interview submissions, the IAA was not in error when it found that that was the first time the appellant had made an express submission that the scarring might have been supportive of his specific claims to have been tortured by being hung from his feet with wire. At no time during the Arrival Interview did the appellant assert he had scarring caused by the SLA. The scarring was not mentioned in the appellant’s statement nor his migration agent’s supporting submissions, which were both submitted as part of the appellant’s SHEV application. Further, the IAA at [10] of its reasons emphasised the absence of any objective evidence of the scarring; no photographs of the scarring were provided, and it did not appear from the audio recording of the SHEV Interview that the appellant offered to show the scarring to the delegate.

34    The first respondent submitted that there were three reasons why the IAA should not be taken to have failed to understand the time at which the claim of scarring was first made. We agree with these reasons. First, [10] of the IAA’s reasons must be considered in the context of the surrounding paragraphs. The IAA at [8]–[10] dealt with the evidence provided by the appellant in the chronological order in which he presented it. Paragraph 8 dealt, first, with the claims made by the appellant in the Arrival Interview (which concerned his father’s experiences with the SLA) and, secondly, with the claims relating to his father’s treatment by the SLA made by the appellant in his SHEV application. At [9], the IAA summarised the claims made by the appellant concerning his own treatment at the hands of the SLA, which were made in his SHEV application and in the SHEV Interview. In this context, [10] can be seen as a summary of the additional evidence provided by the appellant in the letter that was sent by his migration agent after the SHEV Interview, namely that the scarring was corroborative of the claim that he had been hung by his feet with fencing wire. At [11]–[13], the IAA then addressed the inconsistencies in the appellant’s evidence, again chronologically, starting with the Arrival Interview at [11], SHEV application at [12] and SHEV Interview at [13]. The fact that the IAA at [9] did not explicitly mention that the appellant stated he had scarring in the SHEV Interview is of little import; the paragraph must be understood for what it is – a summary of the claims made by the appellant in his SHEV application and SHEV Interview.

35    Secondly, [10] of the IAA’s reasons makes reference specifically to the submissions made by the appellant’s migration agent in the letter sent after the SHEV Interview. The first sentence of that submission stated: “[The appellant] mentioned during his SHEV interview that he still has the scars from being hung by his ankles while he was a prisoner in the Sri Lankan Army camp in Cheddikulam”. To accept the appellant’s submission that the IAA failed to appreciate that the scarring had been raised in the SHEV Interview would require this Court to conclude that, despite referencing the submission, the IAA somehow did not appreciate that the submission referred back to the scarring mentioned in the SHEV Interview.

36    Thirdly, the IAA at [10] stated that it had listened to the audio recording of the SHEV Interview and determined that the appellant did not offer to show the delegate the scarring during the interview. Again, accepting the appellant’s submission that the IAA failed to appreciate that the scarring had been raised in the SHEV Interview would require this Court to conclude that, despite listening to the audio of the SHEV Interview, the IAA was somehow ignorant of the fact that the scarring had been raised in it.

37    The Court is not prepared to come to the conclusions suggested in [35] and [36] above. If we were to accept that the IAA failed to appreciate that the scarring had been raised at the SHEV Interview, it would throw into some doubt whether the IAA had given proper attention to the material before it. Having regard to the otherwise comprehensive nature of the IAA’s reasons, it is not appropriate for the Court to infer that the IAA failed to consider the fact that the scarring was first raised in the SHEV Interview: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47].

38    In the light of our conclusion that the IAA did not make any error in relation to the time at which the scarring was raised, it is not necessary to consider whether the alleged error constitutes jurisdictional error. Nevertheless, we make the following comments.

39    The appellant submitted that the IAA’s failure to appreciate that the scarring was raised for the first time in the SHEV Interview, not the post-interview submissions, was material because of the conclusion drawn by the IAA in [15]: “Given the central significance of the claim I consider if his claimed arrest, detention and mistreatment in 1990 were genuine, it would have been raised earlier”. The appellant submitted that this statement demonstrated that the question of the time at which the appellant raised the claim was critical to the IAA’s decision and an issue therefore arose as to when the IAA understood significant evidence relevant to that claim to have been raised. The appellant submitted that the critical adverse finding to the appellant in [15] can be said to be wrong because, according to the appellant, it appears that the IAA thought that the first time the idea of the ligature marks as being probative was raised was in the post-interview submissions; significant corroborative evidence of scarring had in fact been raised earlier than when the IAA had thought.

40    We disagree with the appellant’s interpretation of [15]. It is clear that the first sentence of [15] refers to the appellant’s failure to mention the 1990 incident as a whole earlier. It is clear from the preceding paragraphs that the reference to “earlier” means at the Arrival Interview; paragraphs 11–15 are formulated in a manner that deals with the whole of the claim and why it was not raised earlier, and the IAA at [12] and [13] considered the reasons the appellant gave for not raising the incident at the Arrival Interview and dismissed those explanations as unconvincing.

41    Once one appreciates that the IAA was dealing with the whole of the claim in the preceding paragraphs, the first sentence of [15] cannot be read or characterised as referring to the appellant’s failure to mention the scarring before the post-interview submissions. Even if it were to be assumed that the IAA had incorrectly found that the appellant did not mention his scarring until the post-interview submissions, this does not make the ultimate factual finding in [15] incorrect.

42    Further, the finding as to when the appellant mentioned his scarring was not material to the IAA’s conclusion that the appellant had not been arrested, detained and severely mistreated by the SLA in 1990. In coming to that conclusion, the IAA relied upon the following additional matters:

(a)    Contrary to the claims made in his SHEV application and SHEV Interview, the appellant in his Arrival Interview had stated that in 1990 his father had been arrested, detained and severely mistreated for a week by the SLA and that on his release the family decided to flee to India for their safety: at [8].

(b)    Contrary to the claims made in his SHEV application and SHEV Interview, the appellant claimed in his Arrival Interview that he had never been arrested or detained by the police or security organisations, that the police and security or intelligence organisations did not impact his day-to-day life, and neither he nor his family had ever been involved with the Liberation Tigers of Tamil Eelam (LTTE): at [11].

(c)    No photos of the scarring were provided and it did not appear from the audio that the appellant had showed the scarring to the delegate during the SHEV Interview (that is, there was no objective, corroborative evidence of scarring): at [10].

(d)    The appellant would have only been about 15 years old at the time of his claimed detention and mistreatment in 1990 by the SLA: at [14].

(e)    The appellant only mentioned that he had previously known the interpreter, “S”, who helped him escape from the SLA, in response to the delegate’s concerns about the likelihood of a person who worked for the SLA helping him escape. The IAA considered that he provided an inadequate response when asked why he had not mentioned this earlier: at [14].

43    In relation to (c) above, the appellant submitted that the IAA failed to appreciate the fact that the delegate had accepted that the appellant “may have some scarring to his feet”. The delegate’s statement, however, must be put in context. Although the delegate accepted that the appellant “may have some scarring to his feet”, the delegate did not accept “that this, in itself, represents evidence of past persecution at the hands of the Sri Lankan authorities”. It should also be noted that the IAA’s review is not a review under Part 7 of the Act, which requires the Administrative Appeals Tribunal to raise with the applicant matters where it intends to depart from dispositive factual findings of the delegate. The IAA is free to reach factual findings which depart from the factual findings of the delegate.

44    The appellant submitted that the scarring was important corroborative evidence that was overlooked by the IAA. He submitted that, by reason of the importance of this evidence and the IAA’s failure to consider it, the IAA failed to consider the appellant’s claim. In SZRKT, Robertson J discussed the circumstances in which a Tribunal’s failure to consider corroborative evidence may constitute jurisdictional error:

111    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

112    As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

113    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, referred to in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at [83], the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. The Court said at [63] that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Migration Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. I do not regard that decision as stating or attempting to state exhaustively the circumstances in which error may or does go to jurisdiction.

114    As to Minister for Immigration and Citizenship v SZNPG at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims. First, however, the present appeal is not a case of mere misunderstanding but of failure to take into account corroborative material. Second, I agree with the federal magistrate at [32] that the case is not authority for the proposition that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence.

45    The appellant’s submission may have some merit if the IAA had failed to consider the corroborative evidence of scarring at all. However, once it is appreciated that the alleged error in question is not overlooking the evidence of scarring, but overlooking or mistaking the time at which that evidence was raised, it is difficult to characterise the error in the way sought by the appellants by reference to SZRKT. The IAA did not overlook the evidence in the sense discussed by Robertson J in SZRKT and the cases his Honour cites at [104]–[115].

46    The appellant further submitted that, even if the IAA did not fail to consider important evidence in the sense discussed by Robertson J in SZRKT, the allegedly erroneous factual findings were material to the IAA’s ultimate conclusion that the appellant did not have a well-founded fear of persecution and that there was not a real risk that the appellant would suffer significant harm if removed from Australia. This submission must be rejected because, as shown above, the IAA reached its conclusion that the appellant had not been arrested, detained and tortured by the SLA based on a number of factors, not just the timing at which the scarring was raised by the appellant; the primary reason why the IAA rejected the appellant’s claim of torture was that the claim as a whole was not raised at the Arrival Interview and the appellant’s reasons for not doing so were not accepted by the IAA; cf CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [34] (Lee J).

47    It may be accepted that, had the IAA found that the appellant had been arrested, detained and tortured in 1990, then on the country information before it, the IAA could have come to a different ultimate conclusion regarding the appellant’s status as a person to whom Australia owed protection obligations. In assessing whether the appellant would face harm if returned to Sri Lanka now or in the reasonably foreseeable future, the IAA focused on recent data concerning the treatment by the Sri Lankan government of persons of Tamil ethnicity and supporters of the LTTE, and the improvements brought about by the change of government in 2015. The IAA identified a number of categories of persons who may be subject to harm under the post-2015 government regime, being:

(a)    Persons on the ‘stop’ electronic database (i.e. persons who have an extant court order, arrest warrant, or order to impound their passport): at [23].

(b)    Persons on a ‘watch’ electronic database (i.e. persons who are considered to be of interest because of criminal or separatist activities), who the delegate noted are unlikely to be detained: at [23].

(c)    Persons considered remnants of the LTTE, including those who worked undercover outside the Vanni or hid overseas: at [24].

(d)    Low level LTTE cadres, LTTE child soldiers, persons with suspected links with terrorists or persons who had been involved in low level political work for Tamil parties or in protests around human rights issues: at [25], citing the International Truth and Justice Protect Sri Lanka reports 2016/2017.

48    When his evidence is taken at its highest (that is, accepting that he was arrested, detained and mistreated by the SLA in 1990), the appellant may fall into one of the categories listed above and may be a person of continued interest to the LTTE. But the IAA rejected the appellant’s claim that he had been tortured in 1990 and there is no basis on which to impugn that finding; the IAA did not make any erroneous findings as to the time at which the appellant raised his scarring and, even if it did, that finding was not a failure by the IAA to consider the evidence before it in the sense discussed in SZRKT, nor was the finding material to the IAA’s rejection of the appellant’s claim to have been tortured. For those reasons, the appeal must be dismissed with the usual order as to costs.

49    The Court wishes to thank the legal representatives and in particular Counsel for the clarity, succinctness and thoughtfulness with which the submissions were put by both sides. Both clients could not have been better served by their legal representatives. Particular mention should also be made of the legal representatives for the appellant who appeared pro bono. In the difficult times that the country is undergoing the Court is especially grateful for solicitors and counsel who appear pro bono for applicants and appellants who would otherwise be self-represented and put their cases with skill and experience.

Associate:

Dated:    11 September 2020