DYT16 v Minister for Immigration and Border Protection [2018] FCA 1808

Appeal from:

DYT16 v Minister for Immigration & Anor [2018] FCCA 1410

File number:

NSD 828 of 2018



Date of judgment:

6 November 2018


MIGRATION appeal from Federal Circuit Court – whether Authority misapprehended content of well-founded fears of persecution – referment by Authority to s 5J of Migration Act 1958 (Cth) – consequential factual evaluation against statutory test – findings of fact as to no serious harm reasonably open. Held – appeal dismissed.


Migration Act 1958 (Cth) ss 5H, 5J, 36, 65

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

Cases cited:

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Commissioner of Taxation (Cth) v Spotless Services Ltd (1996) 186 CLR 404

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220

Date of hearing:

6 November 2018

Date of last submissions:

6 November 2018


New South Wales


General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights



Number of paragraphs:


Counsel for the Appellant:

Mr O Jones

Solicitor for the Respondents:

Ms K Hooper of Minter Ellison


NSD 828 of 2018






First Respondent


Second Respondent






1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.

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


(Revised From Transcript)


1    The appellant is a citizen of Sri Lanka. He arrived in Australia on 2 October 2012 by sea. The circumstances of his arrival were such that he is, for the purposes of the Migration Act 1958 (Cth) (the Act), an unauthorised maritime arrival. On 6 July 2016, he lodged an application for that class of visa under the Act, known as a Class XE (subclass 790) Safe Haven Enterprise visa (visa). Later that month, on 25 October 2016, a delegate of the Minister for Immigration and Border Protection (Minister) refused to grant the appellant that visa.

2    The refusal decision then came to be referred, under the Act, to the Immigration Assessment Authority (Authority). On 2 December 2016, for reasons furnished to the appellant, the Authority decided to affirm the Minister’s delegate’s decision not to grant to him the visa for which he had applied.

3    The appellant then applied to the Federal Circuit Court for the judicial review of the Authority’s decision. On 15 May 2018, for reasons delivered ex tempore that day, that court dismissed with costs the appellant’s judicial review application.

4    The appellant has now appealed to this Court against that order of dismissal. There is only one active party respondent to the appeal, namely, the Minister. Unsurprisingly, but entirely properly, the Authority has filed a submitting appearance.

5    The notice of appeal contains three grounds of appeal. The first two of these were abandoned expressly this morning by Mr Jones of counsel, who appeared on behalf of the appellant. It is common ground that the third ground of appeal raises issues which were not at large in the grounds of review in the judicial review application heard and determined by the Federal Circuit Court. The third ground of appeal is in these terms:

3.    The Federal Circuit Court Judge Smith failed to hold that the IAA applied wrong tests in considering the applicant’s claims for protection.


a)    In relation to case law concerning the meaning of a real chance test, Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 members of the High Court stated in relation to the meaning of “well-founded fear” (Mason CJ stated at 389; McHugh J at 429.

b)    In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 six members of the High Court (including Dawson J) stated in relation to the meaning of “well-founded fear”.

c)    IAA did not ‘take into account the chance that [the incidents] did occur when determining whether there was a well-founded fear of persecution’”: Minister v Rajalingham (1999) 93 FCR 220 at [55].

6    Noting that this ground was not at large before the Federal Circuit Court, the Minister opposed the granting of leave to raise this ground. It was accepted for the appellant, and correctly so, that leave in the circumstances was necessary.

7    It cannot be emphasised too strongly that, in relation to matters of the present kind, the jurisdiction exercised by this Court is appellate, not original. The very nature of the type of case makes it fraught in terms of whether or not to grant leave. The test is clear enough, at least where there is no evidentiary embarrassment and none was asserted by the Minister. That test is whether the proposed ground of appeal is attended with sufficient prospects of success to warrant a grant of leave. Necessarily, that requires some exploration of the merits of the ground. Full argument was addressed to those merits on behalf of both the appellant and the Minister. I am persuaded that the ground is at least sufficiently arguable to warrant a grant of leave and that the interests of justice in this case are best served by dealing with it on the merits.

8    Understanding the ground requires a recitation of the basis of the appellant’s claim for protection. This basis was set out in a way not regarded as indicative of an error in appreciating its integers in para  4 of the Authority’s reasons:

4.    On 25 October 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. In light of the delegate’s reasons for that decision and all of the circumstances I have outlined above, the decision became a fast track reviewable decision. That decision was referred to the Authority for review pursuant to pt.7AA of the Migration Act 1958 (Cth). The Authority made its decision on 2 December 2016 and affirmed the decision of the delegate. The applicant now seeks judicial review of the Authority’s decision.

9    Materially, as para 6 of the Authority’s reasons demonstrates the Authority approached its statutory task, informed by the statutory test, in respect of a well-founded fear of persecution as found in s 5J of the Act. That section provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

(iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person's capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

10    Section 5J supplies the meaning of “well-founded fear of persecution” for the purposes of the definition of refugee found in s 5H. In turn, those definitions give meaning to the criteria for the grant of a visa of the present kind as found in s 36 of the Act. Further, in turn, that satisfaction is a condition as to whether there is an obligation under s 65 of the Act to grant or not to grant the visa concerned.

11    It is axiomatic and accepted by each of the active parties to the appeal that the reasons of the Authority, as with reasons of other administrators, must be read as a whole rather than narrowly and with an eye for error; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Accepting this, argument nonetheless focused on paragraphs 25, 28, 29, 36 and 37 of the Authority’s reasons:

25.    Country information indicates that the Sri Lankan security authorities continue to monitor Tamil populations in the Northern and Eastern Provinces which are still heavily militarised, although it appears that the highly oppressive monitoring and registration regime in place just after the war is being eased. The purpose of the ongoing monitoring seems now to be less concerned with seeking out those people who were previously involved with the LTTE than with ensuring that the organisation does not re-emerge, and with eliminating dissent. The current UNHCR Eligibility Guidelines concerning asylum seekers from Sri Lanka published in December 2012 indicates that Tamils with particular profiles risk being persecuted in contemporary Sri Lanka on account of LTTE affiliations. Examples of such profiles include:

1.    Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

2.    Former LTTE combatants or “cadres”;

3.    Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

4.    Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

5.    LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

6.    Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

28.    More generally, DFAT advises that there are currently no official laws or policies that discriminate on the basis of ethnicity or language in Sri Lanka, which includes education, employment or access to housing and the report also suggests that implementation of laws and policies by the current Sirisena government is generally without discrimination. I accept there is some indication by DFAT of societal discrimination against certain ethnic groups in Sri Lanka, but the information is silent as to how this specifically manifests and the impact it has on Tamils specifically. Significantly though, the country information overall indicates there have been significant positive developments for Tamils in the country politically and socially, and that the improvements are evidenced by the decreases in monitoring and harassment. I accept the applicant may still encounter a degree of societal discrimination and monitoring, but I am not satisfied that this would, separately or cumulatively, constitute serious harm.

29.    UNHCR’s most recent (2012) Guidelines for assessing the eligibility of Sri Lankans for asylum state that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, namely the Northern and Eastern Provinces. The Guidelines state that persons suspected of certain links with the LTTE may be in need of international refugee protection, depending on the individual circumstances of their case. Given my findings about the profile of the applicant, I conclude that he is not a person of particular concern to the authorities, nor does he have a profile that country information suggests he is at risk of serious harm by virtue of his Tamil ethnicity and/or imputed links to the LTTE.

36.    I am also satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor is there country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced. Accordingly, I am satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act. In light of this I find that the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason.

37.    After having regard to the applicant’s claims individually and cumulatively, I find that he does not have a well-founded fear of persecution within the meaning of s.5J.

    [emphasis added]

12    In the last sentence of para 28, to which I have given emphasis, it was submitted that the Authority had erred by failing to pose a “what if I am wrong” question of the kind described by Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 at [60] – [67]. It was also submitted that this particular passage exemplified a misconception of the “real chance” test as formulated by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.

13    In my view, there was nothing about the findings which the authority made which required the posing of a “what if I am wrong” question.

14    The Authority had before it materially country information from the Department of Foreign Affairs and Trade (DFAT), the nature and content of which is set out in para 28 of the Authority’s reasons. That information admitted of the finding which the Authority made in the last sentence of para 28. That particular finding, in turn, did not require the Authority to ask itself whether it was wrong in relation to the making of that finding. The finding reasonably admitted of nothing other than the very finding which the Authority also made, namely, that the appellant:

…may still encounter a degree of societal discrimination and monitoring.

15    The question then for the Authority was one of factual evaluation against the correct statutory test. The Authority’s use of the expression “serious harm” taken in conjunction with its earlier reference at para 6 to s 5J of the Act indicates, in my view, that the Authority was making its factual evaluation against the correct statutory test.

16    Section 5J was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135). It is said in the explanatory memorandum to the Bill, which became that Act, at p 10:

It is the Government’s intention that this statutory implementation of the ‘internal relocation’ principle not encompass a ‘reasonableness’ test which assess whether it is reasonable for an asylum seeker to relocate to another area of the receiving country. Australian case law has broadened the scope of the ‘reasonableness’ test to take into account the practical realities of relocation. Decision makers are currently required to consider information that is additional to protection considerations under Article 1A(2) of the Refugees Convention such as a diminishment in quality of life or potential financial hardship. In the Government’s view, these considerations are inconsistent with the basic principle that protection ought be offered by the international community only in the absence of protection within all areas of a receiving country.

17    It is singularly important, in relation to cases where the Act incorporates amendments, not to be beguiled or distracted, in the contention of the Act as amended, by the muffled echoes of old argumentsgiven : see Commissioner of Taxation (Cth) v Spotless Services Ltd (1996) 186 CLR 404 at [9].

18    For better or for worse, Parliament has made a value judgment, found in s 5J, as to the meaning of “well-founded fear of persecution”. In particular, in ss 5J(4) and (5), are to be found, materially, a requirement that the persecution must involve serious harm and a non-exhaustive statement in subs (5) as to instances of serious harm. It was this that the Authority was addressing. The type of actual evaluation required of the authority was similar in kind to that described in WZAPN v Minister for Immigration and Border Protection [2014] 229 FCR 477 at [51] and [94]. Faced with the information before it, the Authority’s finding as to an absence, either separately or cumulatively, of serious harm was a factual conclusion reasonably open to it.

19    Contrary to the appellant’s submission, there is nothing in that finding which bespeaks a failure to appreciate the correct statutory test. Again, contrary to the appellant’s submission, there is nothing in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 which would suggest otherwise. That case was primarily concerned with the content of complementary protection.

20    In any event, s5J(4) and (5) of the Act just mean what they say. Given that, on the face of the Authority’s reasons, the Authority has adverted to the correct statutory test, all that has occurred here is a factual evaluation. It is nothing to the point as to whether or not others may or may not agree with that evaluation providing it is one reasonably open. As I have already observed, the country information from DFAT admitted of the finding that the Authority made.

21    It necessarily follows that the appeal must be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.


Dated:    22 November 2018