FEDERAL COURT OF AUSTRALIA

ADX17 v Minister for Immigration and Border Protection [2018] FCA 1967

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement pursuant to paragraph 3 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

5.    Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

6.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from orders of the Federal Circuit Court of Australia.

2    For the reasons that follow, the appeal is to be dismissed.

Background facts

3    The appellant arrived in Australia by boat on 16 August 2012. He was an unauthorised maritime arrival.

4    The appellant made an invalid application for a Subclass 866 Protection Visa in August 2013.

5    On 4 November 2015, the appellant lodged an application for a Safe Haven Enterprise (Class XE) Subclass 790 visa (protection visa).

6    On 28 October 2016, a delegate of the first respondent (the Minister) refused the application for a protection visa.

7    The appellant was notified on 2 November 2016 that his application had been referred to the Immigration Assessment Authority (the IAA) for review.

8    On 13 December 2016, the IAA decided to affirm the delegate’s decision to refuse the application for a protection visa.

9    The IAA noted, at [1] of its decision, that the appellant claimed that he feared harm from the Sri Lankan authorities and the paramilitary Eelam People’s Democratic Party (EPDP). The appellant’s claims were set out in detail at [9] of the IAA decision. The appellant’s claims included (relevantly for present purposes):

(a)    The appellant is a Tamil from the Eastern Province in Sri Lanka. During the civil war he and his family had to move regularly to avoid the fighting and he spent periods displaced in refugee camps. His father was taken by the army and is still missing.

(b)    In 1996, the appellant moved from a Liberation Tigers of Tamil Eelam (LTTE) controlled area into army-controlled Trincomalee. He was questioned by the army and held overnight. The Criminal Investigation Department (CID) came to his aunt’s house where he was staying and he was taken and detained for one to two weeks. He was accused of being involved with the LTTE. He was tortured while detained. After his release he was harassed by the authorities on several occasions and only stayed with his aunt two weeks; he was the new person in the area and each time an incident happened he was targeted.

(c)    In 1998, he visited an uncle in Vavuniya where he was arrested and kept in gaol overnight. He was accused of having LTTE links.

(d)    In 2002, he was stopped by the army. They took his identity card and he was told to report to the authorities. His identity card was returned but he was required to report to the authorities for either one week or 15 times.

(e)    The authorities have imputed the appellant with an LTTE profile because his cousin was an LTTE spy. His cousin has been missing since 2006. Before he went missing he lived with the appellant’s mother and the appellant had regular contact with him.

(f)    There were a lot of problems for Tamil people living in his area and there were disputes over contested land and property at the end of the civil war. In 2011, Sinhalese people rioted and attacked Tamil people and looted Tamil homes. On 28 January 2012, a group of 20 Sinhalese people came to the appellant’s home and beat him up. His house was damaged. A number of other Tamil homes were attacked at this time. The appellant provided a letter dated 10 October 2012 from the Secretary of the Ilankai Tamil Arasu Kadchi that referred to damage to Tamil houses. The appellant identified the Sinhalese attackers and rioters to the police who took no action. After this, Sinhalese people came to the family home looking for him on four to five occasions.

(g)    He appeared as a witness in a murder trial in Australia. He gave evidence against the accused who is a fellow Sri Lankan and who was convicted and sentenced to 20 years’ gaol in Australia. The murderer is involved with the Sri Lankan underworld and the EPDP and the appellant fears he could use his influence with family and friends to harm the appellant in Sri Lanka.

10    The IAA made factual findings at [10]-[27] of its decision. The IAA accepted, at [11], that: the appellant had spent several periods displaced due to the conflict of the civil war and that his father had been taken by the army and was still missing; when moving into army-controlled Trincomalee in 1996 he was questioned by the army and held overnight and then detained by the CID for one to two weeks; and he was tortured while detained. The IAA also accepted, at [12], that in 1998 and 2002 the appellant came to the attention of the authorities and was detained and questioned about LTTE links.

11    The IAA accepted, at [14], that the appellant gave evidence against another Sri Lankan in a murder trial in Australia.

12    At [21], the IAA stated that, notwithstanding that the appellant had not provided information regarding his cousin in his arrival interview, it was willing to accept as plausible that the appellant had a cousin who had LTTE links, and that the appellant was in frequent communication with this cousin. However, the IAA did not accept that the appellant had been imputed with an LTTE profile or that he was of interest to the authorities or the EPDP because of this cousin.

13    At [22], the IAA stated that the appellant’s account of disputes between Sinhalese and Tamils over land and housing were largely consistent with country information about land and property disputes after the civil war. However, the IAA was not convinced that the appellant had been affected by this matter to the extent claimed. The IAA stated, at [24], that the appellant may have been a witness to general violence from Sinhalese in 2012. But the IAA did not accept that his house was damaged or looted in either 2011 or 2012 or that he was personally attacked. The IAA did not accept that he was suspected as having identified attackers/rioters to police. The IAA did not accept that he was the victim of a targeted personal attack and that the Sinhalese people pursued him after the rioting.

14    Overall, the IAA found, at [27], that the appellant would not attract attention from the authorities or the EPDP.

15    The IAA then considered the appellant’s refugee claims. The IAA accepted, at [30], that the appellant had spent several periods displaced due to the conflict of the civil war and that his father was taken by the army and was still missing. The IAA stated that the war ceased in 2009 and, while many Tamils were still displaced, this was a result of shortage of housing and infrastructure.

16    At [31], the IAA stated that: throughout the war and in the immediate period following the war the Tamil population had been subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE; it was in this environment that the appellant had been questioned, detained and tortured in Trincomalee in 1996; similarly, in 1998 and 2002, when the appellant came to the attention of the authorities, he had been caught up in general identity checks and questioning about LTTE links had been conducted; however, there had been a significant change in the country circumstances since the end of the war and the defeat of the repressive Rajapaksa government in 2015, and the IAA was not satisfied that there was a real chance the appellant would experience harm on return to Sri Lanka for reason of his Tamil ethnicity.

17    At [32], the IAA referred to certain country information. The IAA stated that although the Prevention of Terrorism Act remained in force, and there had been credible reports of ongoing arrests and disappearances in Sri Lanka, the Department of Foreign Affairs and Trade (DFAT) reported that the improvement in the security situation had resulted in a decrease in the number of Tamils held in detention, and that the election of the Sirisena government in 2015 had led to greater political cooperation. The IAA noted that DFAT advised that the monitoring of Tamils from the former LTTE areas had decreased under the new government and that the Sirisena government had adopted a more pro-active approach to human rights and reconciliation and had been engaging constructively with the Tamil political parties. At the end of this paragraph, the IAA referred to the United Nations High Commissioner for Refugees guidelines entitled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8 (the UNHCR Guidelines). The IAA stated that these guidelines for assessing the eligibility of Sri Lankans for asylum stated that being of Tamil ethnicity alone did not give rise to protection needs, and there was no longer a presumption of a requirement for protection for reason of being a Tamil from a former LTTE-controlled area.

18    After further discussion, the IAA concluded, at [35], that it was not satisfied that there was a real chance of serious harm arising for the appellant due to being a Tamil from a former LTTE-controlled area.

19    In relation to the claims based on giving evidence in a murder trial, the IAA stated, at [36], that it accepted that the appellant gave evidence against another Sri Lankan in a murder trial in Australia and that the appellant feared reprisals from this person. The IAA noted that the person was currently serving a long prison sentence in Australia. The IAA stated that: the appellant had not put forward how the person would be in a position to pay money to underworld contacts or the EPDP in Sri Lanka while incarcerated in an Australian prison; and it was not convinced that he would be in a position to organise for the appellant to be harmed. The IAA noted various aspects of the appellant’s evidence and found that the appellant’s fear was based on unsupported speculation. The IAA stated that there was no indication that any threats had been made to the appellant, or any other witness or person who gave evidence, or to any of their family members in Sri Lanka. The IAA found the chance of any harm to the appellant on the basis of giving evidence in Australia to be remote.

20    After considering other claims, the IAA concluded that the appellant did not meet the requirements of the definition of refugee and therefore did not meet the criterion in s 36(2)(a) of the Migration Act 1958 (Cth). The IAA then considered the complementary protection criterion and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant would suffer significant harm. Accordingly, it was found that the appellant did not meet the criterion in s 36(2)(aa) of the Migration Act.

The proceeding in the Federal Circuit Court

21    The appellant applied to the Federal Circuit Court for judicial review of the IAA’s decision. The appellant and the Minister were both represented by counsel at the hearing in the Federal Circuit Court (which took place on 1 June 2017).

22    The primary judge delivered reasons for judgment (the Reasons) and made orders dismissing the application for judicial review on 24 November 2017.

23    The appellant relied on three grounds in his amended application in the Federal Circuit Court. These were set out at [3] of the Reasons. They are substantially similar to the three grounds of appeal relied on by the appellant in this Court, as set out below.

24    The primary judge set out the background to the application at [4]-[17] and summarised the decision of the IAA at [18]-[28]. The parties’ submissions were summarised at [29]-[42] of the Reasons. The primary judge’s consideration of the three grounds is set out at [43]-[51] of the Reasons. I will refer to his Honour’s reasons later in these reasons, in the context of considering the three grounds of appeal.

The appeal to this Court

25    The appellant appeals from the orders of the Federal Circuit Court. The appellant does not have legal representation. The three grounds of appeal set out in his notice of appeal are as follows:

1.    The decision of the Federal Circuit Court is affected by jurisdictional error

Particulars

a.    The applicant claimed that his cousin was an LTTE spy and had been missing since 2006.

b.    The 2012 UNHCR guidelines outline 6 risk profiles which should be taken into account, the relevant ones in the applicant’s case are:

i.    Former LTTE combatants or cadres

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

c.    The IAA found that it did not accept that the applicant had been imputed with an LTTE profile or that the authorities and EPDP had an interest in him for that reason.

i.    The IAA applied the incorrect test by considering whether the applicant would be imputed with an LTTE profile due to his association with his cousin.

ii.    [I]nstead the IAA should have considered that the applicant faced a real risk of serious harm, in general due to his association with his cousin. The Court has erred by concluding that the IAA was not obliged to take into account UNHCR guidelines.

2.    The decision of the Federal Circuit Court is affected by jurisdictional error by failing to properly consider the applicant’s evidence.

Particulars

a.    The applicant claimed that his father was taken by the army and was still missing.

i.    The applicant further claimed that he was concerned he may disappear like his father.

b.    The IAA accepted that the applicant’s father as missing

c.    However, the IAA did not make any further findings in relation to the risk of harm to the applicant as a result of his father’s status as a missing person or the potential harm the applicant may face if he was to return to Sri Lanka. The Court has erred by failing to hold that there had been a failure to consider the implications of the applicant’s claims with respect to his father.

3.    The decision of the Federal Circuit Court is affected by jurisdictional error by failing to give adequate reasons for its findings

Particulars

a.    [T]he applicant claimed that he had been a witness in a murder trial in Australia and gave evidence which led to the conviction and sentence of a person who had Sri Lankan underworld and EPDP contacts.

b.    [T]he IAA stated that it was not convinced that he would be in a position to organize for the applicant to be harmed.

i.    [T]he IAA did not provide further explanation for why it came to this conclusion and did not adequately consider the convicted person’s links to the groups that may harm the applicant upon his return.

c.    [I]n relation to the same claim, the IAA found there was no indication that any threats have been made to the applicant, any other witnesses or persons who have evidence, or to their family members in Sri Lanka.

i.    The IAA did not consider the risk of future harm to the applicant upon return.

The Court has erred in its findings that it was open to the IAA to make such a conclusion that the risk of harm to the applicant on that basis was remote.

26    The appellant filed an outline of submissions (referred to as contentions of fact and law) in advance of the hearing and made oral submissions at the hearing of the appeal.

Consideration

27    I will consider each of the three grounds of appeal in turn.

28    The first ground of appeal relates to the appellant’s claim to fear harm on the basis that his cousin was an LTTE spy and had been missing since 2006. The appellant contends that the IAA applied an incorrect test, by considering whether the appellant would be imputed with an LTTE profile due to his association with his cousin, rather than considering whether the appellant faced a real risk of serious harm in general due to his association with his cousin. The appellant relies on the UNHCR Guidelines, which set out six risk profiles, including (relevantly): former LTTE combatants or cadres; and persons with family links with, or who are dependent on or otherwise closely related to, persons with the above profiles.

29    In circumstances where the appellant is not legally represented in this Court, but was legally represented below, I will also have regard to the submissions advanced on the appellant’s behalf below, as summarised in the Reasons.

30    The appellant’s submissions in relation to the corresponding ground below are summarised at [29]-[30] of the Reasons. It was submitted on the appellant’s behalf that: given the appellant’s cousin was an LTTE spy, he clearly came within the category of a “former LTTE combatant or cadre”; as the cousin had lived with the appellant’s mother and the appellant was in close contact with him, the appellant was clearly closely related to a person who came within one of the risk profiles, which in turn brought him within category 6 of the risk profiles; rather than asking itself whether the appellant would be imputed with an LTTE profile, the IAA should instead have considered whether or not he faced a real risk of serious harm simply due to his association with his cousin; and once the connection with his cousin had been established, the appellant came within the UNHCR Guidelines.

31    The primary judge dealt with ground 1 at [43] of the Reasons as follows:

The IAA was not obliged to take into account the UNHCR Guidelines [: MZZMG v Minister for Immigration & Border Protection [2015] FCCA 607]. I accept the submission of the first respondent that the IAA relied primarily on other country information and used the UNHCR Guidelines in the limited way identified. It was not a jurisdictional error for the IAA to prefer the country information it did to that contained in the UNHCR Guidelines [: QAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 968; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29]. Nor was it an error for it to use the UNHCR Guidelines in the limited way that it did. The question of weight to be attached to country information was a matter for the IAA [: QAAT op cit at [51]]. In reality, the applicant seeks to agitate an impermissible merits review with respect to ground one and I dismiss it.

32    In my view, the reasons of the primary judge in relation to this ground are correct, and ground 1 in the notice of appeal should be rejected for substantially the same reasons. In general, the choice of, and weight given to, country information is a matter for the decision-maker. The Court cannot substitute its own view of the material, even if it has a different view: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. In the present case, the IAA was not obliged to adopt and apply the six risk profiles set out in the UNHCR Guidelines; it was open to the IAA to apply the UNHCR Guidelines in the more limited way that it did (at [32] of its decision). It was open to the IAA to address the appellant’s claim by considering whether the appellant had been imputed with an LTTE profile, and whether he was of interest to the authorities or the EPDP because of his cousin (see the IAA decision at [21]). Accordingly, this ground of appeal is not made out.

33    The second ground of appeal relates to the appellant’s claim that he was concerned that he may disappear like his father.

34    In the Federal Circuit Court, it was submitted on behalf of the appellant that: while the IAA made a finding that the appellant was fearful of disappearing “like his father”, it did not make any findings in relation to the risk of harm to the appellant as a result of his father’s status as a missing person; and, for that reason, the IAA had not taken into account the totality of the evidence and had not properly considered the case advanced by the appellant (see the Reasons at [31]).

35    The primary judge dealt with the corresponding ground below at [44]-[47] of the Reasons. The primary judge noted that it was well established that if the IAA failed to make a finding on “a substantial, clearly articulated argument relying upon established facts”, then it may have fallen into jurisdictional error by reason of a constructive failure to exercise jurisdiction: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and [63]. The primary judge reasoned as follows:

45.    The applicant is correct to submit that the importance of considering the totality of the evidence has been stressed in a number of cases. However, I do not [accept] that the IAA did not properly address the applicant’s claim to fear harm based on his association with his father and the implications of his father’s disappearance. The IAA clearly accepted that the applicant’s father was missing. The applicant’s claim was that he was worried that “he may disappear like his father”. Having accepted that the applicant had spent several periods displaced due to the civil war, and that his father was taken by the Army and still missing, the IAA then embarked upon a consideration of the circumstances in Sri Lanka as they applied to Tamil ethnicity during and after the civil war. It also considered the emergency regulation that enabled the security authority to use broad power “to arrest and detain [suspects]” and noted that those powers had now been lifted. It then noted that whilst the Prevention of Terrorism Act remained in force in Sri Lanka, and that there was some reports of ongoing arrests and disappearances, country information from the Department of Foreign Affairs and Trade (‘DFAT’) noted an improvement in the security situation resulting in a decrease in Tamils held in detention. It noted DFAT information that suggested that the monitoring of Tamils had decreased and that there was a more proactive approach to human rights and reconciliation with respect to Tamils. It was then that it referred to the UNHCR current guidelines which stated that being of Tamil ethnicity alone did not give rise to protection needs and that there was no longer a presumption for a requirement for protection for reason of being of Tamil ethnicity from a former LTTE controlled area. In my view, a fair reading of the IAA’s reasons suggests that the fact and implications of the father’s detention and disappearance were considered in light of that information. In other words, that specific aspect of the applicant’s claims was subsumed by the findings of greater generality based on country information. I am not satisfied that jurisdictional error has been demonstrated on the basis of a failure to consider the implications of the applicant’s claims with respect to his father.

46.    The second matter raised under this ground during the course of oral submissions, although not particularised in the Amended Claim, was that the IAA made no specific finding as to whether or not the applicant was on an EPDP watch list. That complaint can be answered by reference to the fact that the IAA made a finding of fact that it did not accept that the EPDP had any ongoing interest in him and that it did not accept that the EPDP had made any enquiries at his family home since his departure from Sri Lanka. The IAA identified that part of the applicant’s claim based on his name being on a watch list. Whilst the IAA did not specifically make a finding that the applicant’s name was not on a watch list, that is in my view a clear implication of its finding that he was no longer of any interest to the EPDP. To conclude otherwise would be to read the IAA’s decision with an eye keenly attuned to the perception of error. I am not satisfied that the applicant has demonstrated jurisdictional error on the basis of a failure to consider this aspect of his claim.

(Footnotes omitted.)

36    I consider the reasons of the primary judge to be correct. For substantially the same reasons, in my view, ground 2 in the notice of appeal should be rejected. The IAA accepted that the appellant’s father has been taken away by the army and was still missing: see [11] and [30]. The IAA properly addressed the appellant’s claim to fear harm based on the disappearance of his father. The specific aspects of this claim were subsumed into findings of greater generality: see the IAA decision at [31], [32] and [35].

37    The third ground of appeal relates to the appellant’s claim relating to the murder trial.

38    In the Federal Circuit Court, it was submitted on behalf of the appellant in summary that: the IAA did not summarise or make findings as to certain aspects of the appellant’s claims with respect to the circumstances surrounding him giving evidence in the murder trial; in simply making a finding that it was not convinced that the convicted murderer would be in a position to harm the appellant, the IAA failed to properly explain its reasoning; the conclusion reached by the IAA flew in the face of public knowledge about the operation of underworld figures and the fact that they can orchestrate crimes from prisons; in finding that it was not convinced that the convicted man would be in a position to organise for the appellant to be harmed, the IAA had applied the wrong test because it was only necessary for the appellant to establish that there was a risk of such harm and not to positively prove that there was such harm (see the Reasons at [32]-[34]).

39    The primary judge dealt with this ground at [48] of the Reasons:

As to ground three, it was not necessary for the IAA to refer to every piece of evidence and every contention made by an applicant in order for its reasons to be adequate [: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184]. The IAA is not a court but rather an administrative body as the Full Court observed in WAEE, such administrative bodies are “operating in an environment which requires the expeditious determination of a high volume of applications”, [WAEE op cit at [46]] whilst the Full Court was referring to the Refugee Review Tribunal, the observation is apposite to the IAA and it is not necessary for the IAA to provide reasons as comprehensive as those expected from a court of law. It is of course, required to provide reasons that adequately explain its findings. With respect to the applicant’s contention that the IAA did not provide adequate reasons as to why the applicant’s circumstances having been a witness in a murder trial did not give rise to a real risk of harm, I am not satisfied that this was the case. Specifically, I reject the submission that the IAA did not, in dealing with this issue, consider the risk of future harm to the applicant upon return to Sri Lanka. In finding that the fact that the convicted murderer had a friend from the same area in Sri Lanka where the applicant’s family lived, was a “tenuous association at best”, the IAA was considering the question of whether or not there was a real chance of harm to the applicant on his return to Sri Lanka and that consideration included the assessment of risk at the hands of an agent or agents of the convicted man. To the extent that the IAA did not expressly couch its reasons in those terms, I accept that an inference of a failure to consider an issue may in some circumstances be drawn from the failure to expressly deal with it in its reasons. I note the observations of the Full Court in Applicant WAEE: “but that is an inference not to readily to be drawn where the reasons were otherwise comprehensive and the issue has at least been identified at some point.” [WAEE op cit at [47]]. The IAA considered the fact that the convicted man was serving a lengthy period of imprisonment and that no mechanism had been suggested by the applicant as to the manner in which it might be possible for him to influence others to harm the applicant. It was relevant for the IAA to note that there was no evidence before it that the applicant, or any other person, had been threatened as a result of having given evidence. I am satisfied that it was open to the IAA to conclude that the risk of harm to the applicant on this basis was remote. I am not satisfied that the IAA failed to ask itself the correct question.

40    In my view, the primary judge’s reasons in respect of this ground are correct, and ground 3 in the notice of appeal should be rejected for substantially the same reasons. The IAA provided adequate reasons for rejecting the appellant’s claim relating to the murder trial (at [36] of the IAA decision). It was open to the IAA to reason in the way that it did in relation to this claim.

41    I note for completeness that attached to the appellant’s contentions of fact and law are certain documents including letters in support of his claims. Copies of the letters also appear in the Appeal Book. The letters do not advance the grounds of appeal in the notice of appeal. Also attached is a copy of the subpoena that apparently relates to the murder trial. It does not appear that the subpoena was before the IAA. It does not advance his ground of appeal relating to the claim based on the murder trial.

Conclusion

42    It follows from the above that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.

Associate:

Dated:    6 December 2018