FEDERAL COURT OF AUSTRALIA

ALQ16 v Minister for Immigration and Border Protection [2017] FCA 1195

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal by leave granted by a judge of the Court from a decision of the Federal Circuit Court on a ground not argued below: ALQ16 v Minister for Immigration and Border Protection [2016] FCCA 2081 and ALQ16 v Minister for Immigration and Border Protection [2017] FCA 283. In granting leave to appeal on the sole permitted ground of appeal, his Honour said that the ground involved a question of law only, with the present appellant proposing only to rely on the same material as was before the trial judge: ALQ16 [2017] FCA 283 at [33].

The issue

2    The ground of appeal has two limbs comprising separate particulars, namely, that the trial judge should have found that the Administrative Appeals Tribunal erred in applying the “real chance” test when assessing whether the appellant’s fear of persecution by reason of his Tamil ethnicity was well-founded on each of the following alternate bases, namely:

(a)    by erroneously applying the “real chance” test in reasoning that because the situation for Tamils in Sri Lanka had improved, the appellant did not have a well-founded fear of persecution;

(b)    by misapprehending the “real chance” test because it ought to have considered the possibility that allegations of torture and mistreatment suffered by other returnees were true.

Background

3    The appeal arises in the context that the appellant was a citizen of Sri Lanka. He applied for a protection visa in December 2012. A delegate of the Minister refused to grant the visa in December 2013. The Tribunal affirmed the delegate’s decision in February 2016.

4    Although the appellant made a number of claims for protection, the sole ground on which this appeal is based derives from his claim that if he returned to Sri Lanka, he had a well-founded fear of persecution for reason of his being an ethnic Tamil and that, for the same reason, he was entitled to complementary protection. Thus, the issue posed by the appeal depends upon the way in which the Tribunal arrived at its rejection of the appellant’s claim for a protection visa by reason of his Tamil ethnicity on the bases provided in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).

5    The Tribunal recorded that, in accordance with Ministerial Direction No 56 made under s 499 of the Act, it had been required to take account of policy guidelines prepared by the Minister’s Department, including the PAM3 Refugee and Humanitarian Complementary Protection Guidelines, the PAM3 Refugee and Humanitarian Refugee Law Guidelines and any country information prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for those purposes.

6    The Tribunal summarised a number of aspects of country information in pars [35]-[43] in its statement of decision and reasons immediately prior to the heading above par [44] of its reasons, “Consideration of claims and evidence”. It referred to information contained in a DFAT country report for Sri Lanka dated December 2015 and earlier DFAT reports dated October 2014, being a thematic report relating to people with links to the Liberation Tigers of Tamil Eelam (LTTE), and February 2015, being a country report. It noted various issues in relation to the country reports that were relevant to the appellant’s claims, including that the Sri Lankan government was publicly claiming that the involvement of the military in civilian activities in the north and east of the country, whence the appellant hailed, had changed. The Tribunal’s summary stated that the reports indicated that the security situation in Sri Lanka had:

greatly improved since the end of the conflict in 2009 and that this included in the north and east of the country which is the traditional Tamil homeland.

7    The Tribunal referred to the reports indicating that DFAT had assessed that there were no official laws or policies in Sri Lanka that discriminated on the basis of ethnic extraction or language and that there was “… only a low level of discrimination in the implementation of laws and policies”. The Tribunal also noted that, historically, many Tamils had faced barriers to education and employment and that that had caused a sense of discrimination against Tamil people, but that successive Sri Lankan governments had made some efforts to address those ethnic and linguistic tensions.

8    The Tribunal’s summary noted that many Tamils, particularly in the north and east of Sri Lanka, had expressed a fear of monitoring, harassment, arrest and detention by security forces “and that this activity was largely due to LTTE members and supporters almost all being Tamil”.

9    However, the DFAT reports noted that the cessation of forced registration of Tamils suggested that the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. The Tribunal summarised the December 2015 report as indicating DFAT’s assessment that the monitoring and harassment of Tamil people:

… has decreased under the current government and … on a day-to-day basis the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities if such activities occur.

10    The appellant focused on aspects of the Tribunal’s summary of conditions applicable to Tamils in Sri Lanka described in the DFAT reports. Those included that the number of incidents of extrajudicial killings and associated activity had fallen considerably since the end of the conflict and that there were credible reports of torture having been carried out by Sri Lankan security forces, which the Tribunal summarised those as having come:

from a wide range of actors and including political activists and suspects held on criminal charges and from people held under suspicion of LTTE connections. The reports indicated that the Department was aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka but the Department assessment overall is that the risk of torture or mistreatment for the great majority of returnees is low including for those suspected of offences under the Immigrants and Emigrants Act.

11    The Tribunal noted that the country reports confirmed there was no law or government policy in Sri Lanka that hindered access to State protection on the basis of, relevantly, ethnicity. The Tribunal noted at par [40] that the December 2015 DFAT report had referred to the parliamentary elections in August 2015 in Sri Lanka and that the current government had a more proactive approach to human rights and reconciliation than the previous government. It noted that that report also referred “to the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka and that those Guidelines link the level of risk to people who had real or perceived links to the LTTE”. The Tribunal noted that Tamils were not nominated as being at risk per se on the basis of their ethnicity, in accordance with those Guidelines. In the next paragraph, the Tribunal referred to the October 2014 report in relation to persons with links to the LTTE and repeated its earlier observation that the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka indicated that people with real or perceived links to the LTTE may be at risk and added:

As noted earlier those Guidelines do not indicate that Tamil people are at risk per se in Sri Lanka on the basis of their Tamil ethnic extraction.

12    At par [42], the Tribunal recorded part of the questioning in which it had engaged with the appellant about his circumstances and his claim that he had been released in July 2009 by the police after one day’s interrogation about his suspected involvement with the LTTE. The Tribunal noted that he did not claim that he had experienced any further incidents with Sri Lankan authorities about that issue. The Tribunal said that it:

… indicated that it did not perceive the applicant as having a risk profile in Sri Lanka in accordance with the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka. Those Guidelines did not nominate Tamil people as being at risk per se on that basis.

13    The Tribunal also indicated to the appellant that the DFAT reports to which it had referred to did not support many of his claims regarding his fear of harm on the basis of his Tamil ethnicity. It noted that he had claimed, in response, that because he was a Tamil his life would not be safe if he returned to Sri Lanka, that there were still informants working in that country and those people gave information to the government, from whom he feared harm.

14    At the conclusion of its hearing, the Tribunal allowed the appellant two weeks in which to make further submissions. He responded to that request by providing it with other country information, including material specifically relating to persons with real or perceived links to the LTTE, but none that dealt specifically with his claim to fear harm, were he returned to Sri Lanka, merely on the basis of his ethnicity.

15    In the “Consideration of claims and evidence” section of its statement of decision and reasons, the Tribunal found that it was not satisfied that the appellant had a well-founded fear of persecution if he returned to Sri Lanka based on any of his claims and his evidence to it. The Tribunal made adverse findings as to his credibility, which is not relevant to the particular claim that is alive in this appeal.

16    The Tribunal found at pars [46] and [47]:

The applicant’s claims to fear harm are referred to elsewhere in these reasons. The Tribunal has considered the applicant’s claims that he fears harm on the basis of his Tamil ethnic extraction. The Tribunal has considered the applicant’s evidence and is [sic] also had regard to available and relevant country information and submissions made on the applicant’s behalf. The Tribunal accepts that the recent DFAT reports that have been referred to in these reasons provide comparatively recent and credible country information relevant to a number of the applicant’s claims. The Tribunal notes the country information that has been referred to and including the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka. Those guidelines as indicated do not nominate Tamil people as being at risk per se on that basis. They do link the risk to people to factors such as a real or perceived link to the LTTE. The Tribunal after considering the overall evidence does not accept that the evidence indicates that the applicant has a real or perceived link to the LTTE that could place him at risk if he returned to Sri Lanka. The applicant also said he had not been involved in any political activities since the municipal elections in early 2011. He told the Tribunal that apart from the one incident on one day in July 2009 where he had been detained and questioned about the LTTE and mistreated by the authorities he had not had further difficulties with the authorities about any suspected LTTE connections or in connection to his Tamil ethnic extraction. The country information contained in the DFAT country reports indicates that successive Sri Lanka governments have made efforts to address ethnic and linguistic tensions in relation to historical conflict between Tamil and Sinhalese people and particularly in relation to education and employment. The December 2015 country report indicates that the current Sri Lankan government has a more proactive approach to human rights and reconciliation. The Tribunal notes that the country information that has been referred to also indicates that the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. The Tribunal notes that the applicant was able to obtain his passport in 2006 and travel without difficulty in Dubai in 2011 and return without difficulty.

The Tribunal after considering the evidence and the country information and the submissions made on the applicant’s behalf does not accept that the applicant has a well-founded fear of persecution if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of his Tamil ethnic extraction. The Tribunal does not accept that the evidence and available and relevant country information that has been referred to supports the applicant’s claims in relation to this issue. The Tribunal also does not accept that the DFAT country information indicates that Tamils are unable to get decent employment and would never get a job working for the government as claimed by the applicant. (emphasis added)

17    When the Tribunal subsequently discussed the appellant’s claim to fear harm, were he to be returned to Sri Lanka, because he had left as an illegal immigrant in breach of the country’s Immigrants and Emigrants Act, it referred again to having noted elsewhere in its reasons that he “does not have a risk profile in accordance with the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka”. It then referred to the December 2015 DFAT report that indicated that DFAT had assessed that the risk of torture or mistreatment for the vast majority of returnees was low. The Tribunal was not satisfied that there was a real chance that the appellant’s membership of a particular social group of failed asylum seekers who had left illegally and sought asylum in a western country placed him at risk of serious harm for the purposes of the Refugees Convention should he return to Sri Lanka then or in the reasonably foreseeable future.

18    The Tribunal then accepted the DFAT reports that had been referred to in its reasons in relation to Sri Lanka which it found provided recent and credible information relevant to the appellant’s claims. It said:

The 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka do not indicate that Tamil people are at risk per se on that basis but link the risk of harm to other factors such as a real or perceived link to the LTTE. The applicant has no such risk profile. (emphasis added)

19    Then, in par [57], after considering the appellant’s claims both individually and cumulatively on the basis of the evidence and materials and information before it, the Tribunal found that it did not accept that the appellant faced a real chance of serious harm for a Convention-based reason if he were returned to Sri Lanka either then or in the reasonably foreseeable future. And, on the same basis, the Tribunal was not satisfied that Australia owed the appellant complementary protection obligations.

The appellant’s submissions

20    In essence, the appellant argued, in support of the first limb of his ground of appeal, that the Tribunal’s recitation of the country information in its report and its subsequent consideration of the appellant’s claim did not amount to a finding that the appellant was not at risk on the basis of his Tamil ethnicity in the way in which the UNHCR Guidelines had said. Rather, the appellant argued, the circumstances and matters which the Tribunal had recited from the country information revealed that substantively, while conditions had improved generally in Sri Lanka since the end of the conflict, incidents of monitoring and harassment of Tamils in day-to-day life still occurred, albeit that the country information had noted that, first, those conditions had either generally eased or decreased under the current government, secondly, extrajudicial killings and associated activity had fallen considerably, but still existed, and, thirdly, ethnic and linguistic tensions for Tamils had improved, but still existed. He argued that the country information accepted that there were credible reports of torture carried out by Sri Lankan security forces and that those reports had come from a wide range of actors that, while referred to inclusively, did not in themselves eliminate the real chance that a person in the appellant’s position, merely because of his Tamil ethnicity, would suffer persecution or significant harm for the purposes of s 36(2)(a) or (2)(aa) of the Act.

21    The appellant argued that the country information as recorded by the Tribunal in its summary left open that real and serious human rights abuses were still occurring, albeit, in effect, the position had improved. He noted a statement at par [43] by the Tribunal summarising one of the reports, which the appellant himself had submitted after the hearing, that “despite the election of a new government in Sri Lanka [in early 2015], the process of reconciliation is still greatly hindered by a long history of ethnic tension”.

22    The appellant also argued that the Tribunal’s finding in par [47], based on the evidence and country information, was arrived at on the balance of probabilities and did not eliminate the existence of a real chance that the appellant may be subjected to serious or significant harm, were he to return to Sri Lanka, by reason of his Tamil ethnicity. That is to say, the appellant contended that the Tribunal had not considered his claim that he faced a real chance of serious or significant harm but rather it had decided his application for review only on the balance of probabilities without considering whether, even if that were so, there was still the real chance that he may suffer the harm he claimed to fear.

23    The appellant argued the second limb of his ground of appeal on the basis that the Tribunal had failed to consider the possibility that its summary, based on the evidence and country information, of events of torture or mistreatment suffered by other returnees might be true, even though, on the balance of probabilities, it was not satisfied that they were. He relied on the reasoning of Sackville J, with whom North J agreed, in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, and particularly at 239-240 [60]-[63], in support of the argument that the Tribunal was obliged to engage in reasonable speculation as to whether there was a real, substantial basis for an applicant for review’s claimed fear of persecution, where the Tribunal was uncertain as to whether an alleged event occurred, or found that, although the probabilities were against it, the event might have occurred. In essence, the appellant argued that, in its statement of its reasons, the Tribunal had not eliminated the doubt that the country information concerning adverse treatment of Tamils might be true and could apply to the appellant.

Consideration

24    It is important to bear in mind the principles for considering the reasons given by administrative decision makers in applications for judicial review of their decisions that Brennan CJ, Toohey, McHugh and Gummow JJ identified in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Those reasons are meant to inform and should not be scrutinised in an overzealous way on judicial review to discern whether some inadequacy may be gleaned from the way in which they are expressed.

25    The real chance test is not a substitute for the Refugees Convention expression “well-founded fear”, although often it will lead to the same result: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. They held that a fear was “well-founded” when there was a “real substantial basis for it” and that such a basis may exist even though there is far less than a 50% chance that the object of the fear may eventuate. The evidence before the decision maker, here the Tribunal, must indicate a real ground for believing that, now or in the reasonably foreseeable future, the applicant for refugee status is at risk of persecution for a Convention reason or of significant harm for the purposes of the complementary protection ground. And a fear of persecution is not well-founded if it is merely assumed or mere speculation: Guo 191 CLR at 572.

26    In order to determine whether a fear of persecution is well-founded, a decision maker must form an opinion of what is likely to occur if the applicant for refugee status is returned to his or her country of nationality. That can involve making findings about past events and motivations of the persons from whose conduct the fear is claimed to have arisen: Guo 191 CLR at 574. Their Honours continued (at 575-576):

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

… in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. (emphasis added)

27    Their Honours gave an example where a decision maker finds that it is only slightly more probable than not than an applicant has been punished for a Convention reason, in which case the decision maker has to take into account the chance that the applicant was so punished in determining whether he or she actually has a well-founded fear of future persecution. On the other hand, they held that where the decision maker has no real doubt as to the correctness of its findings about the past and future, it need not take that possibility into account: Guo 191 CLR at 576. In MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at 461-462 [95]-[96], Keane CJ, Perram and Yates JJ summarised the principles as follows:

95    In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision-making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution. His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:

(a)    There are circumstances in which the tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.

(b)    In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.

(c)    Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.

(d)    There is no reason in principle and nothing in the reasoning of the High Court in those cases that the tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.

(e)    Similarly there is nothing in the reasoning of the High Court which permits a court exercising powers of judicial review to “impute” to the tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the tribunal should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well-founded. To do so would be to engage in merits review.

(f)    In general, the question whether the tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the tribunal’s own reasons. If a fair reading of the reasons as a whole shows that the tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

96    As to the last of these principles, his Honour said (at [67]):

… Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal’s] own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the [Tribunal’s] reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution. (emphasis added)

28    In my opinion, fairly read, the Tribunal had no real doubt that the appellant would not be at any risk for reasons of his Tamil ethnicity (or any other reason) were he returned to Sri Lanka. It came to that conclusion on the basis of the 2012 UNHCR Eligibility Guidelines. Those Guidelines identified that the mere fact that a person was of Tamil ethnicity would not place that person at risk. The Tribunal repeatedly referred to those Guidelines in connection with its consideration of the appellant’s claims that his Tamil ethnicity exposed him to a real chance of serious or significant harm were he to return to Sri Lanka. It confronted him with the Guidelines when it questioned him on that basis. The Tribunal made clear that its finding at par [47] was a finding that it had no real doubt that the mere possession of Tamil ethnicity could not establish that the appellant had a well-founded fear of persecution by reason of that ethnicity or that he faced a real chance of serious or significant harm were he to be returned to Sri Lanka now or in the foreseeable future.

29    I am of opinion that the appellant’s arguments must be rejected. The Tribunal referred to country information on which it based its findings that the mere fact that a person was of Tamil ethnicity or would face circumstances that applied equally to the population as a whole, did not give rise to a real chance that the appellant would suffer serious or significant harm, for the purposes of s 36(2)(a) or (aa), were he to be returned to Sri Lanka then or in the reasonably foreseeable future. It was open to the Tribunal so to find on the evidence and material before it. Read as a whole, the Tribunal’s reasons showed that it had no real doubt that whatever residual discrimination occurred to Tamils in Sri Lanka who had no risk profile, that conduct did not amount to a real chance that such a person would suffer serious or significant harm for the purposes of s 36(2)(a) or s 36(2)(aa) merely on the basis of his or her ethnicity.

Conclusion

30    For these reasons, I am of opinion that neither of the ways in which the appellant’s grounds were put can be made out. I will order that the appeal be dismissed and that the appellant pay the Minister’s costs.

Associate:

Dated:    5 October 2017