FEDERAL COURT OF AUSTRALIA

DEX16 v Minister for Immigration and Border Protection [2019] FCA 654

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background

1    In this appeal, the appellant asserts two propositions.

2    The first is that the Immigration Assessment Authority (the “IAA”) fell into jurisdictional error because it failed to consider (that is to say, failed to engage in an “active intellectual process” of considering) particular “information” and “submissions” that the appellant says it was required to consider, as a matter of law. The second issue is whether the IAA considered the “cumulative effect” of the claims made by the appellant as an applicant before the IAA seeking review of a decision of the Minister’s delegate to refuse the grant of an application by the appellant for a Safe Haven Enterprise Visa (otherwise known as a “SHEV”).

3    The appellant is a 32 year old Sri Lankan national of Tamil ethnicity born in Point Pedro in the Jaffna District in the Northern Province of Sri Lanka. He arrived, without documents, at Christmas Island, on 17 August 2012. Thus, for the purposes of s 46A(1) of the Migration Act 1958 (Cth) (the “Act”), he was an “unauthorised maritime arrival”. It is not in controversy that the appellant was given written notice by the Minister under s 46A(2) of the Act which enabled him to lodge an application for a protection visa in the form of a SHEV. He lodged that application on 19 October 2015 and became a “fast track review applicant” as defined in s 5 of the Act. He contended that he is a person in respect of whom Australia has protection obligations by reason of s 36(2)(a) and s 36(2)(aa) of the Act.

4    At the date of the IAA’s decision on 29 September 2016, s 473DB(1) was in these terms:

Immigration Assessment Authority to review decisions on the papers

473DB    (1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

[emphasis added]

5    The decision of the Minister’s delegate to refuse the appellant’s application for a SHEV is a fast track reviewable decision. Section 473CA provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. Section 473DB(1) casts an obligation on the IAA in undertaking a review of a fast track reviewable decision to consider the “review material” provided to the Authority under s 473CB. Section 473CB(1) relevantly provides:

Material to be provided to Immigration Assessment Authority

473CB    (1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    …

6    Section 473CB(2) provides that the Secretary must give the review material to the IAA at the same time as, or as soon as reasonably practicable after, the decision is referred to the IAA. Section 473CC provides that the IAA must review a fast track reviewable decision referred to it under s 473CA and may either affirm the decision under review or remit the decision for reconsideration with relevant directions.

7    Division 3 of Part 7AA taken together with ss 473GA and 473GB (which fall within Division 6 of Part 7AA) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA: s 473DA.

8    The appellant’s essential contention in this appeal (apart from the “cumulative effect” point) is that the IAA failed to discharge its statutory obligation to review the delegate’s decision, by failing to consider review material provided to the IAA under s 473CB.

9    It will be necessary to return to the content of that contention later in these reasons. However, it is also necessary to identify the essential elements of the appellant’s claims (and assertions of fact) put to the IAA as the context within which the IAA had particular information and submissions put to it.

10    In this appeal, the appellant is represented by Mr Selliah of Rasan Selliah & Associates. The appellant was represented by Mr Karp of counsel instructed by those solicitors in the application before the Federal Circuit Court of Australia. I mention that matter simply to note that in the proceedings before this Court and the primary Court, the appellant has had the benefit of legal representation. The Minister is represented by Mr Reilly instructed by MinterEllison.

Other contextual background matters

11    The appellant’s lawyers draw particular attention to these matters. In the appellant’s statement attached to his application of 5 October 2015 for a SHEV taken together with claims made by him in his SHEV “interview”, the appellant made these claims. He said that he left Jaffna with his family when he was three months of age. The family settled in a particular place and lived in that area for about 25 years. It was a place controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) until 2009. The family farmed land, growing rice. The appellant claimed that it was compulsory for one family member to contribute to the activities of the LTTE either as a fighter or in some other position. He said that he needed a job and worked as a driver for the LTTE from 2007 to 2009. He says that he was paid reasonably well. He helped transport injured people to hospital for treatment and helped deliver first aid (medicine) to the injured. He delivered food to LTTE members although he was not (and at the time of his claims was not) an LTTE member. He did not receive any weapons training or become an LTTE fighter. He said that towards the end of the civil war in 2009, there were thousands of civilians trapped in Putumattalan when the Sri Lankan army attacked that area. He was quite badly injured in March 2009 and remained in hospital for 20 days. He claimed that approximately two weeks after leaving hospital, the army forcibly took all Tamil people living within a two kilometre radius of the Manik Farm detention camp, to that camp, where he remained for approximately one year: although the appellant describes the farm as “Manik Farm” in his statement of 5 October 2015, the farm is otherwise described as “Menik Farm” in many places and, accordingly, I will use the term “Menik Farm”. He arrived at the camp on 20 April 2009. He claimed that he was “very scared and had a very bad life there” because he was interrogated and beaten. He claimed that he was frequently interrogated and questioned about his work with the LTTE. He claimed that once a week people in the camp were asked to line up in front of one or two men wearing scarves hiding their faces. He claimed that people who were singled out were taken to another detention camp near Colombo and, as far as the appellant knows, those individuals never returned to the Manik Farm. The appellant was never singled out from such a line-up.

12    The appellant was released in May 2010 although he was required to report to the local CID office in his village on three more occasions and asked to register/report until otherwise advised not to. He claimed that he was frightened that on one of these occasions he would be interrogated and would be “abducted or killed”. He claimed that members of the Criminal Investigation Division (“CID”) said that they had information about him and threatened him with detention if he did not give them any information. He believed that within the army there were some Tamils who worked for the CID and passed on information about him to the CID concerning suspected involvement with the LTTE. In 2011, fearing that he may again be the victim of paid informants who knew about his background of working for the LTTE, he ceased work and made arrangements to leave the country.

13    In the SHEV interview, the appellant said this when asked by the interpreter what he feared in returning to Sri Lanka (at AB 338-339):

I    … So, what do you fear if you are returned to Sri Lanka? What is your fear?

A    Okay, so like yeah, say, any time they can take me back. Like yeah, so if I return back, like there’s not, no, it’s, there’s no peace of mind for me, like yeah I had to live in fear. Any time, they can come and take me.

I    … So, what do you think will actually happen to you if you are returned to Sri Lanka?

A    Yeah, I’m not, I’m very uncertain what will happen to my life, like yeah. Either, like yeah, say I have to live in fear, anytime anything could happen to my life.

I    So you think you might be killed?

A    Yes.

I    And, what do you think the motivation of the Sri Lankan army, the CID or the paramilitary groups [would] be in harming you if you return, you yourself?

A    Say like, yeah, that’s how they live a comfortable life. Like because they, they kill innocent people, like yeah. They tell the government that the innocent people are involved in the LTTE and everything to save their positions, in the government.

I    And do you think the authorities, like the Sri Lankan government and the police would protect you if you were to return?

A    No, definitely not.

I    Why is that?

A    Okay, say like, even when we were in Sri Lanka, we were not protected. So I don’t think that there will be any protection for me there even with the new government … So there’s no guarantee.

I    Okay.

[emphasis added]

The initial submissions of the migration agent in support of the SHEV application

14    The appellant’s migration agent made submissions (12 October 2015) in support of the SHEV visa application, referenced to some country information.

15    The appellant emphasises an observation at para 10 of the submission (AB 138) in these terms:

Torture is part of the day-to-day operation of the Sri Lankan state. The democratic, rule-of-law based system that existed in Sri Lanka has been systematically undermined and its governing institutions have been no longer functioning in their assigned roles.

16    That observation is referenced to a footnote to an Asian Human Rights Commission report entitled Sri Lanka an Addiction to Torture of 2014. The appellant also emphasises an observation at para 58 of the submission in these terms (AB 148-149):

A Tamil asylum seeker who returned to Sri Lanka in May 2009 said she was detained, questioned and subjected to torture including sexual abuse by security agents, and imprisoned for five months at an army camp. Two Tamil men [who] returned described torture by Sri Lankan authorities upon arrival in Colombo. One said he was severely beaten and scalded with cigarettes and heated iron rods. The second told Human Rights Watch about his torture at the headquarters of the military Criminal Investigations Department after he was detained at the airport.

17    That observation is referenced to a UK Human Rights Watch report of 29 May 2012 entitled Suspected Deportations of Tamils to Sri Lanka. The appellant also relies on an appendix to the submission (AB 151) which is an article by Frances Harrison entitled The Walk of Shame (with a particular website address) in which this observation (AB 152) is emphasised by the appellant:

One young man was abducted in a white van. After weeks of sexual and physical abuse his father bribed him out of the army camp where he was being tortured and took him immediately to Mannar to hide before getting on a boat to India.

18    The submission also attaches one document entitled Amnesty International Report 2014/15: The State of the World’s Human Rights – Sri Lanka (25 February 2015) (the “Amnesty February 2015 Report”) (AB 154-157) and another entitled Briefing Note: Torture & Sexual Abuse Under the New Government in Sri Lanka STOP, September 2015 (the “September 2015 Briefing Note”) (AB 158-168).

19    As to the Amnesty February 2015 Report, the appellant emphasises these three passages (AB 154 and AB 156-157):

ARBITRARY ARRESTS AND DETENTIONS

Tamils suspected of links to the Liberation Tigers of Tamil Eelam (LTTE) continued to be arrested and detained under the Prevention of Terrorism Act (PTA) instead of ordinary criminal law. The PTA permits extended administrative detention, and shifts the burden of proof to a detainee alleging torture or other ill-treatment. It also restricts freedoms of expression and association and has been used to detain critics.

TORTURE AND OTHER ILL-TREATMENT

Torture and other ill-treatment of detainees – including sexual violence – remained widespread in Sri Lanka, especially at the moment of apprehension and during early stages of pre-trial detention. Victims reported torture of both adult and juvenile detainees; these included individuals arrested in the context of security operations as well as suspects in ordinary criminal cases.

DISCRIMINATION – ATTACKS ON MINORITIES

Discrimination against ethnic, linguistic and religious minorities, including members of Tamil, Muslim and Christian communities, continued. Minorities were singled out for arbitrary restrictions on freedoms of expression and association. Tamils, particularly those from the north of the country, were harassed, threatened and arrested by security forces which suspected them of sympathy or links with the LTTE, based largely on their ethnicity and place of origin or residence. The army and police actively supressed the rights of northern Tamils … Police failed to protect religious minorities when they faced violence by communal forces, and did not arrest perpetrators of such violence, even when there was photographic evidence to identify them.

20    As to the September 2015 Briefing Note, the appellant emphasises this observation (AB 160):

Sri Lanka: Torture and Sexual Abuse Under the New Government

Abduction, torture and sexual violence of mainly Tamils by the security forces continues despite the change of government after 8 January 2015. ITJP has taken detailed signed statements from ELEVEN such cases that occurred in 2015 under the new government.

21    The appellant also emphasises this passage at AB 160-161:

2015 Cases: 3 women, 8 men

The 2015 cases follow the same pattern as abduction under the Rajapaksa government [the old government]. The interrogators and torturers typically wear a mixture of army uniforms and plain clothes; sometimes they introduce themselves as CID, sometimes as members of other branches of the security forces. While the abductors usually take great pains to hide the location of the torture and sexual violence, none make any attempt to hide their own identities from their victims, indicating a climate of total impunity. A Tamil woman described being repeatedly raped in mid-2015 in Joseph Camp [the details of that matter then follow].

22    The appellant also relies on statements in the September 2015 Briefing Note concerning an incident in which it is said that, in May 2015, a young Tamil man was abducted by men describing themselves as “military intelligence”. This young man asserts that he was beaten, “petrol bagged”, water tortured and sexually abused involving anal and oral sex. The appellant says that all of these references from the submission and the reports were given to the delegate (and sent to the IAA by the Secretary) to support an “objective” basis for the fears of harm asserted by the appellant.

23    The appellant, by his written submissions, says that this material reflects three important matters. First, the security forces and those allied to them have engaged in systematic abuse including torture and sexual violence, of people suspected of having LTTE links.

24    Second, some failed asylum seekers have been tortured.

25    Third, Tamils, including men, have been detained and sexually tortured until bribes were paid: appellant’s submissions at para 8.

The post-interview submissions of the migration agent of 9 December 2015

26    The appellant was invited to attend an interview with the Departmental Case Officer in relation to his SHEV application on 3 December 2015. On 9 December 2015, the appellant’s migration agent, Ms Rebecca Lim, set a follow-up written submission to the Case Officer. The appellant emphasises these matters drawn from Ms Lim’s submission. First, there is “no temporal aspect” to the “widely accepted risk profile” of attacks and harassment of individuals “recently suspected of LTTE affiliations” with the result that there is “ongoing targeting” of individuals with “actual, perceived or imputed affiliations to the LTTE”: AB 186 and 187. The appellant, in this context, relies upon Ms Lim’s contention (AB 187) that UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012 (the “21 December 2012 UNHCR Eligibility Guidelines”), state that:

Previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection.

27    Second, the appellant’s cumulative risk profile needs to be considered in light of “current” country information (AB 192) and, the information is consistent, it is said, with the appellant’s assertions regarding the post-war environment in Sri Lanka. Ms Lim’s submissions alleges that “it would be too simplistic to assume that because he was not detained prior to his departure from Sri Lanka, he is not at risk of future harm”: AB 192.

28    As to the cumulative factors, the appellant emphasises this information at AB 188 of Ms Lim’s submission:

•    He is publicly known to have aided the LTTE working as a driver transporting injured person, fellow workers, materials and lived on an LTTE base.

•    He sustained injuries and scarring from the war. As stated in your interview that, “When they see my scars, they know I am different. They suspected me. The experienced people by looking at injuries they know what I do”.

•    He was beaten and interrogated while detained in Manik Farm.

•    While at Manik Farm, he witnessed people being taken away, disappeared and presumed missing. This imposes an additional risk to his safety as the OISL report was particularly interested in investigating events at Manik Farm.

•    He was required to report regularly to the CID after his release from Manik Farm. He was subjected to interrogation and beaten on the soles of his feet.

•    Since he left Sri Lanka, his family was questioned on his whereabouts.

29    The appellant also relies on the statement in Ms Lim’s submission that these cumulative factors giving rise to a “cumulative risk profile”, need to be considered “in light of current country information” and as to that, the appellant refers to a 21 March 2014 report (incorrectly described as March 2015) entitled An Unfinished War: Torture and Sexual Violence in Sri Lanka May 2009 – March 2014 by a member of a UN panel of experts, Yasmin Sooka (a member of the UK Bar’s Human Rights Committee) in which it is said (by Ms Lim at AB 188) that the report says that:

… militia supported security force intelligence gathering that included the torture and physical and sexual abuse of Tamils accused of LTTE connections in the five years since the end of the war.

30    Ms Lim’s submission goes on to say at AB 188:

The report asserted these groups often brokered the release of torture victims between the government and family members in exchange for payment of money.

31    The observation quoted above contains a reference to “the report” which seems to be a reference to Ms Sooka’s report but the observation is attributed, by footnote, to a United States Department of State 2014 Country Report on Human Rights Practices – Sri Lanka, 25 June 2015 (the “June 2015 USDOS Report”). Reliance is also placed on these observations in Ms Lim’s submission drawn from the June 2015 USDOS Report (AB 189):

The United States Department of [State] reported in July 2015 that other serious human rights problems in Sri Lanka included unlawful killings by security forces and government-allied paramilitary groups, often in predominantly Tamil areas and a disproportionate number of the victims of human rights abuses were Tamils.

32    Reliance is also placed on this paragraph of Ms Lim’s submission at AB 189 referenced to a document (on a particular website) described as State Secretariat for Migration SEM, Arrest of Two Asylum Seekers in Sri Lanka, 26 May 2014 (the “SEM document”):

A report from the Edmund Rice Centre published on 12 August 2015 documents numerous current instances of failed asylum seekers being subject to torture upon return in Sri Lanka. Shockingly, it reports the United Kingdom Home Office has confirmed that at least 15 Sri Lankans who were recently granted refugee status [and who] had previously been removed from the UK had been either tortured or subjected to cruel or inhuman treatment after their forced return.

33    The appellant also relies on this part of Ms Lim’s submission (AB 189-190):

Enforced disappearances

[The appellant] faces a real chance of serious harm because of his previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE. The links to the LTTE can vary, and may include “Former LTTE supporters [who] were involved in sheltering or transporting LTTE personnel, or the supply and transport of [goods] for the LTTE”.

34    That part of the above quote in italics is referenced by Ms Lim to the 21 December 2012 UNHCR Eligibility Guidelines.

35    Ms Lim also addresses in her submission the topic of the risk of significant harm that may occur in custody and the disregard for the rule of law. As to that, the appellant places reliance on the following observation (AB 195):

There were numerous reports throughout the year of victims arrested and detained on unsubstantiated charges. Many detainees continued to be held arbitrarily for prolonged periods without charge, including in irregular places of detention [referenced to the June 2015 USDOS Report]. Security personnel used involuntary disappearances to interrogate persons “off the books” without the need to document the cases. [Referenced to a UN Human Rights Council Report under the title Promoting Reconciliation, Accountability and Human Rights in Sri Lanka dated 16 September 2015]. Some cases authorities reportedly followed detention by interrogation that included mistreatment or torture [also referenced to the June 2015 USDOS Report].

36    The appellant also emphasises the observation in Ms Lim’s submission at AB 196 that although Ministerial Direction Number 56 requires decision-makers to take into account Department of Foreign Affairs and Trade (“DFAT”) reports when considering a matter, “other relevant country information is also to be taken into account” and “indeed, DFAT Country Report – Sri Lanka of 16 February 2015 states that it is not an exhaustive source of country information”.

The delegate’s decision

37    As to the delegate’s decision, the appellant emphasises this claim at para 79 concerning the CID’s interest in him at a time after his departure from Sri Lanka:

The applicant has claimed that following his departure from Sri Lanka his parents were approached once by the local CID enquiring how he had left the country. He claims his parents told the CID they did not know how he had departed and they have not been approached since. I accept this claim.

38    At para 80, the delegate accepts a wide-range of factual claims as “credible”. 21 separate factual assertions by the appellant fall into that category. The appellant, in oral submissions, emphasises virtually every one of those findings made by the delegate which were then put before the IAA by the Secretary. The delegate’s findings on these factual matters and claims are set out below:

•    the applicant is a Hindu Tamil male whose rural home village is Kandavalai, in Kilinochchi District (a former LTTE stronghold)

•    he was not a LTTE member, nor did he receive weapons training or participate in armed conflict

•    the applicant undertook paid non-combatant work for the LTTE from 2006 to 2009

•    he was the focus of LTTE recruitment in 2007 because he was the only single male child in the family

•    from 2007 he undertook full time driving work for the LTTE, transporting food, building and first aid supplies, injured and deceased people. During this time he lived at various LTTE accommodations in Kilinochchi and Mullaitivu, returning occasionally to Kandavalai to visit his family

•    the applicant was not aware of where the LTTE stashed their weapons

•    he received injuries from a grenade attack on his vehicle in October 2001 and received hospital treatment for his injuries

•    the applicant has significant scarring from his war injuries, which is visible on his arm, chest and abdomen

•    following his discharge from hospital the applicant spent two weeks convalescing and then on 20 April 2009 he was forcible taken to a series of Internally Displaced Persons camps

•    the last camp he stayed in was Menik Farm in Vavuniya. He was there with his parents and younger sister. They stayed there for one year

•    the CID interrogated him four times at Menik Farm, because of his past association with the LTTE. During one of these interrogations he was beaten heavily

•    he was never taken to a Rehabilitation Centre or Prison

•    he was witness to the people being taken out of the camp, in CID “line ups” at Menik Farm and never returning (presumed missing)

•    upon release from Menik Farm, in May 2010 the applicant was required to report regularly to his local CID office, which he did. This reporting requirement reduced over time

•    the applicant was subject to monitoring by the CID and [was] occasionally interrogated (formally questioned) by his local CID with regard to his past association with the LTTE, as well as his present circumstances. At these times he was not physically beaten but was subject to verbal threats

•    local informants were operational in the area the applicant lived and worked and they may have provided information to the CID about the appellant which resulted in him being called in for questioning

•    the applicant worked as a casual bus conductor from 2010 to 2011

•    he came to the attention of CID officers at Omanthai sometime in 2010 and 2011. At this point he was not detained or called in for interrogation but became fearful as a consequence that he may be harmed by these CID officers in the future

•    the applicant departed Sri Lanka out of a subjective fear that he would be harmed by Sri Lankan authorities

•    the applicant’s family were approached once about how the applicant departed Sri Lanka

39    However, the delegate did not accept that the appellant was “being personally pursued by the Sri Lankan authorities because they had a significant or particular interest in him in the period following his release from Menik Farm or prior to his departure from Sri Lanka”: para 81.

40    The appellant also emphasises these findings of the delegate:

89.    I am also satisfied that the applicant’s past affiliation with the LTTE links to his imputed “political opinion”, in the it could be perceived he supports the LTTE which implies an ideological opposition to the Sri Lankan government.

92.    I accept that the applicant belongs to each of these groups [social groups being Sri Lankan nationals departing Sri Lanka illegally; Failed Asylum Seekers returning to Sri Lanka; and Persons who lived as Internally Displaced Persons (IDP) at Menik Farm].

96.    … I am satisfied that the applicant fears persecution for the reason of his race, religion, political opinion and membership of particular social groups.

98.    I am satisfied that the reasons of race, religion, political opinion and membership of particular social groups are the essential and significant reasons for the feared persecution.

99.    The applicant claims he will be arrested, detained, tortured, seriously hurt or killed for the reason of his race, religion, political opinion and membership of particular social groups. I am satisfied the harm feared amounts to serious harm as it involves a threat to the applicant’s life or liberty, and significant physical harassment or ill-treatment. …

100.    I am satisfied the feared persecution involves serious harm to the applicant. ..

102.    I am satisfied the feared persecution involves systematic and discriminatory conduct.

41    At para 103, the delegate says this:

103.    I have already found the applicant has a subjective fear of returning to Sri Lanka. I will now consider whether he has an objective fear.

42    As to that matter, the delegate had regard to the 21 December 2012 UNHCR Eligibility Guidelines and observed that the appellant fell within category IV of those Guidelines which “may give rise to a need for international protection”, that category is: “Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply or transport of goods for the LTTE”.

43    In the result, the delegate concluded that the appellant did not have a profile which would cause him to face a real chance of persecution if he returned to Sri Lanka, having regard to the appellant’s history of having been released from Menik Farm on reporting conditions rather than having been transferred to a rehabilitation camp and an apparent lack of interest in the appellant by the security forces between the time he stopped work in 2011 and his departure from Sri Lanka on 28 July 2012.

44    In relation to the claim of a fear of persecution because the appellant is a Tamil, the delegate relied on and quotes (AB 230 at para 128) a UNHCR Report dated 6 July 2010 in relation to Sri Lanka which says that given the cessation of hostilities, Sri Lankans from the north are no longer in need of international protection solely on the basis of “indiscriminate harm”. The delegate accepted that although Tamils from the north and the east might “face a degree of harassment because of their race” (para 129; UNHCR Report, 6 July 2010), the delegate was not satisfied that Tamils “are currently subject to a real chance of persecutory conduct purely by virtue of their race”: para 130.

45    As to the appellant’s “cumulative risk profile”, that is, his risk of harm having regard to his claims and his assertions of fact (accepted as credible) all taken together, the delegate said this at para 152 (having quoted the collection of factors):

… Considering all the evidence above, I find that the chance to the applicant of facing serious harm for these reasons is remote rather than real. I find that apart from possibly being subjected to routine background checks on return or subjected to low-level discrimination the applicant does not face a real chance of harm. I therefore find that the fear is not well-founded.

The relevance or point of this material at the level of the delegate

46    The point of all this at the level of the delegate is that these matters of the various claims and assertions of fact put to the delegate and the delegate’s view of them are emphasised by the appellant because, first, all of this material was referred to the IAA by the Secretary under s 473CB(1) of the Act and, second, the appellant’s contention is that the IAA failed to have regard to a lot of material and findings favourable to the appellant. The appellant asks: What did the IAA do with all of this material? Did it evaluate it? The appellant contends for a failure by the IAA to discharge the statutory review function required by s 473CC and s 473DB(1) by failing to consider the “review material” which, by reason of s 473CB(1) includes “all information and submissions” made to the delegate (s 473CB(1)(b)) and the findings of fact made by the delegate; the evidence on which the findings were based; and the reasons for the decision: s 473CB(1)(a).

47    As to the IAA’s decision, the particular criticism made by the appellant orally and in written submissions is that the IAA’s reasons do not engage, or attempt to engage, with the following material (more fully identified earlier in these reasons):

(a)    The migration agent’s submissions that there was ongoing targeting of people with actual or perceived links to the LTTE, with those targeted at risk of harm, including torture, irrespective of how long the link has been known.

(b)    The migration agent’s submission that militias often brokered the release of torture victims between the government and victims’ families for money.

(c)    Information … that abduction, torture and sexual violence of mainly Tamils by the security forces continued after the Sirisena government was elected in 2015, with the perpetrators making no effort to hide their identities.

(d)    The delegate’s finding, based on a UNHCR report that despite improvements in the overall security situation, security forces have continued to engage in human rights abuses, including arbitrary detention, enforced disappearances, torture and murder.

(e)    The submissions of the migration agent that DFAT reports were contrived to “advance Australia’s interests” and could not be relied upon in considering whether the applicant faced harm upon or after return to Sri Lanka.

48    The appellant contends by ground 1 of the appeal that the primary judge erred at [33] and [34] of his Honour’s reasons in finding that the IAA had engaged with the review material before it consistently with s 473CC and s 473DB(1). The particulars of that ground are these:

Particulars

(a)    The Court should have found that the second respondent had failed to consider information that was before it to the effect that;

(i)    Abduction, torture and sexual violence of mainly Tamils by the security forces continued after the change of government in 2015, with the perpetrators making no effort to hide their identities.

(ii)    Despite improvements in the overall security situation, security forces have continued to engage in human rights abuses, including arbitrary detention, enforced disappearances, torture and murder.

(b)    The Court should have found that the second respondent failed [to] consider clearly articulated submissions advanced on behalf of the applicant to the effect that;

(i)    There was ongoing targeting of people with actual or perceived links to the LTTE with those targeted at risk of harm, including torture, irrespective of how long the link has been known.

(ii)    Militias often brokered the release of torture victims between the government and victims’ families for money.

49    The written submissions concerning propositions at (c) and (d) (also made orally), at [47] of these reasons, I take to be an expression of grounds 1(a)(i) and 1(a)(i) of the notice of appeal. The propositions at (a) and (b) as described at [47] of these reasons are reflected at grounds 1(b)(i) and 1(b)(ii) of the notice of appeal.

Paragraphs [33] and [34] of the primary judge’s reasons

50    At [33] and [34] of his Honour’s reasons, the primary judge said this:

33    While the detail of what was put before the delegate on behalf of the applicant probably merited more fulsome consideration by the Authority, it is tolerably clear from the Authority’s reasons that the Authority was not only aware of that information but considered it. Further, the Authority twice asserted in its reasons that it had considered the applicant’s claims cumulatively. While there are cases where such an assertion is so artificial or divorced from an active intellectual engagement that it may be dismissed as a verbal formula, this is not such a case. It is plain from the Authority’s reasons that it placed heavy reliance on the general improvement of circumstances for Tamils (including those who had formerly been associated with the LTTE) from 2015 onwards. The applicant had left Sri Lanka in 2012 and had no personal experience of those improving conditions. The authority at [15] specifically had regard to the applicant’s risk factors by reference to guidelines published by the UNHCR.

34    In my opinion, the conclusions reached by the Authority were open to it on the material before it and sufficient was done in the Authority’s reasons to demonstrate that it had engaged with the review material consistently with ss.473CC and 473DB of the Migration Act. Further, I am satisfied that the Authority considered the applicant’s claims cumulatively as it asserted it did.

[footnotes omitted]

The IAA’s decision and consideration of the jurisdictional challenges to the decision

51    The IAA summarised the claims of the appellant at para 5 of the decision. After briefly setting out that summary, the IAA turned (at para 5) to “the UNHCR” and said this:

According to the UNHCR, any individual with actual or imputed links to the LTTE is at risk of harm.

52    That reference seems clearly enough to be a reference to the 21 December 2012 UNHCR Eligibility Guidelines at footnote 3 on AB 187 (which uses the phrase “previous (real or perceived) links” etc) in Ms Lim’s submission of 9 December 2015. The IAA then says this at para 5:

There is no temporal aspect to this risk profile.

53    That observation also comes from Ms Lim’s submission at AB 187 (mid page). The IAA then says this at para 5:

There is no requirement for the imputation of this view [that is, individuals with actual or imputed links to the LTTE being at risk of harm] to have derived from recent events.

54    That observation also takes up a proposition put by Ms Lim in her 9 December 2015 submission (AB 187) where she says (to the Case Officer): “With due respect, you have erred in suggesting, without any reason or explanation, that only people who were recently suspected of LTTE affiliation will be at risk of harm” [original emphasis]. The IAA then says this, also at para 5:

His cumulative risk profile needs to be considered in light of current country information which documents ongoing allegations of disappearances, torture and sexual and physical abuse of Tamils accused of having LTTE connections.

55    As to that observation, it also takes up Ms Lim’s submission at AB 188 that the factors which suggest that the appellant is perceived as having links to the LTTE need to be considered cumulatively and “the applicant’s cumulative risk profile needs to be considered in light of current country information”. The IAA adds that such current country information is to be assessed to determine the extent to which it “documents ongoing allegations of disappearances, torture and sexual and physical abuse of Tamils accused of having LTTE connections”. That observation suggests that the IAA is engaging with the question of abduction, torture, physical and sexual violence and the ongoing targeting of people with actual or perceived links to the LTTE currently at risk of harm which, of course, was the very subject matter Ms Lim was urging the IAA to consider. Also at para 5, the IAA recognises this matter:

The applicant quotes country information sources that recent human rights problems in Sri Lanka include unlawful killings by security forces and government-allied paramilitary groups, often in predominantly Tamil areas, with a disproportionate number of the victims of human rights abuses being Tamils, as well as other country information indicating torture and cruel or inhuman treatment is ongoing in Sri Lanka.

56    At para 5, the Tribunal also notes this matter:

For cumulative reasons, including being a Tamil with perceived LTTE links and having departed the country unlawfully, the applicant fears a real chance of harm in Sri Lanka’s criminal justice system.

57    As to the observation quoted at [55] of these reasons, those observations are also drawn from Ms Lim’s submission of 9 December 2015 as quoted at [31] and [32] of these reasons (the first two complete paragraphs at AB 189). The observations in those paragraphs (and thus the IAA’s observations as taken up) are, in turn, referenced to the 25 June 2015 USDOS Report and the SEM document.

58    In the deliberative part of the IAA’s reasons, the IAA accepts that the appellant avoided actual combat duties for the LTTE and worked as a driver for the LTTE: para 10; that the appellant was injured in March 2009 in shelling in Putumattalan during the LTTE’s conflict with Sri Lankan forces: para 11; that the appellant was questioned while at Menik Farm by CID officers about his involvement with the LTTE and may have been mistreated: para 12; that internally displaced persons (IDPs) camps were established at which individual screenings and checks were carried out with the security forces repeatedly questioning IDPs about their or their relatives’ involvement with LTTE: para 12; that at two particular camps (Mullaitivu and Omanthai) witnesses described seeing soldiers beating some of those who identified themselves as LTTE: para 12; that nonetheless, the appellant contended that he cooperated fully when questioned by authorities and admitted freely his role as a paid driver for the LTTE and that while he was questioned about weapons, he said that he was not privy to such matters: para 13; that the appellant was detained at Menik Farm for around a year during which time he was questioned about his links to the LTTE and was released in May 2010; that the available evidence is that the Sri Lankan authorities were aware of the appellant’s employment by LTTE as a driver and when released in May 2010, the authorities were satisfied that he was not a person of interest: para 14.

59    At para 15, the IAA refers to the 21 December 2012 UNHCR Eligibility Guidelines and recognises that the UNHCR document states that depending on the specifics of the individual case, previous (real or perceived) links that go beyond prior residence in a LTTE controlled area may give rise to a need for protection. This observation expressly takes up the point made by Ms Lim at AB 187 of the 9 December 2015 submission. The IAA recognises that the 21 December 2012 UNHCR Eligibility Guidelines state that former LTTE supporters who were involved in transporting LTTE personnel or the supply or transport of goods, may be at risk. The IAA accepted that the appellant’s role as a driver for the LTTE may impute to him the profile of a LTTE supporter and bring him within the scope of the UNHCR risk profile. However, the IAA finds at para 15 that after considering the appellant’s individual circumstances, it did not consider that the appellant faced a real chance of persecution on return to Sri Lanka.

60    The reasons for that conclusion (apart from those already mentioned at para 14 of the IAA’s decision), briefly were these: the Sri Lankan authorities were aware of the appellant’s employment by the LTTE as a driver; he was detained, questioned and released from Menik Farm and the authorities were satisfied that he was not a person of interest; from the time of his release from Menik Farm in May 2010 until he departed Sri Lanka on 28 July 2012 he resided at and in his family’s home and although he may have undergone low level questioning by CID officers, he was neither arrested nor detained: paras 16 and 17, IAA decision.

61    At para 17, the IAA takes up Ms Lim’s point at AB 192 (see [27] of these reasons). There, Ms Lim said that having regard to the appellant’s assertions regarding the post-war environment in Sri Lanka, it would be too simplistic to assume that because he was not detained prior to his departure, he is not at risk of future harm and that the appellant’s cumulative risk profile needs to be considered in light of country information. In taking up those matters, the IAA said this at para 17:

While the applicant claims it is too simplistic to assume that because he was not detained prior to his departure from Sri Lanka, he is not at risk of future harm, country information is that the security situation in Sri Lanka’s north and east has greatly improved since the end of the conflict in 2009 and those at highest risk of monitoring, arrest, detention or prosecution include the LTTE’s former leadership. The available evidence is that the applicant was a low level driver who did not play any LTTE leadership role and that he would not be perceived as having done [so]. As a result, I am not satisfied that the applicant faces a real chance of persecution from the Sri Lankan authorities, due to any actual or imputed involvement or association with the LTTE.

62    The reference to country information in that passage is a reference to a Department of Foreign Affairs and Trade Country Information Report concerning Sri Lanka dated 18 December 2015 (the “DFAT 18 December 2015 Report”).

63    The appellant says that the IAA referred to the appellant’s submissions “in extremely general terms” at para 5 of the IAA’s reasons. However, it can be seen from the above discussion that at paras 5, 14, 15 and 17, the IAA is engaging with the specific content of the appellant’s submissions and the sources for the propositions put by the appellant’s migration agent. As to the criticism the appellant makes of DFAT reports, the IAA says this at para 9:

The applicant states that as DFAT is not an independent organisation, but a government agency tasked with advancing Australia’s interests abroad, its country reports cannot be considered to accurately and completely reflect the present situation in Sri Lanka. I do not accept this. As articulated in the Purpose and Scope section of the latest Country Information Report [footnoted to the DFAT 18 December 2015 Report], it represents DFAT’s best judgment and assessment at time of writing and is distinct from Australian Government policy. I have had regard to relevant DFAT reports in my assessment.

64    At para 9, the IAA is saying that it rejects the broadly-based challenge to the relevance, independence and utility of DFAT reports and makes clear that it has had regard to DFAT reports in reaching its assessment. That observation, however, does not mean that the IAA has not had regard to propositions put to it in, for example, Ms Lim’s submissions and the sources referred to by Ms Lim. It is clear, for example, that the IAA has engaged with the propositions derived from the 21 December 2012 UNHCR Eligibility Guidelines.

65    It is clear that the IAA has engaged with the points made by the appellant’s migration agent about the combination of risk factors contemplated by those guidelines and it is clear that the IAA has recognised and engaged with the points given emphasis by Ms Lim in her submission with the sources identified in the text and footnotes by Ms Lim. These references by the IAA reflect a proper “consideration” by the IAA, in the sense of, taking into account and engaging with the particular points put to it by Ms Lim derived from the sources referenced by Ms Lim. The appellant says that the IAA has only had regard to DFAT country information reports and, in substance, really only had regard to the DFAT 18 December 2015 Report as to the contemporary position. However, I am satisfied that that is an unfair reading of the report overall because, as the discussion above reflects, the IAA has engaged with the points of emphasis identified by Ms Lim referenced to all of the sources identified by Ms Lim.

66    The IAA’s election to have particular regard to the DFAT 18 December 2015 Report is explained at para 9 of the IAA’s decision but it is not fair to say that the IAA only had regard to that report. Plainly enough, it has given emphasis to that report but the IAA has engaged with the propositions put to it by Ms Lim on behalf of the appellant. The election to have regard to the DFAT 18 December 2015 Report and the weight and emphasis attributed to it in the deliberative process, is a matter for the IAA.

67    Had the IAA simply ignored other references and not addressed the points of emphasis made by Ms Lim, that would be an entirely different matter.

68    In relation to the question of the statutory obligation to “consider” the “review material”, I am satisfied that the IAA has engaged with the material put to it in the sense contemplated by the use of the term “consider” as discussed by Black CJ at 462C-D in Tickner v Chapman (1995) 57 FCR 451; (1995) 133 ALR 226 and by Kiefel J (as her Honour then was) at 495, para G; see also the observations of the Court (Griffiths, White and Bromwich JJ in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, (2017) 347 ALR 173 at [36] to [40]).

69    Accordingly, I am satisfied that the primary judge was correct to find that the IAA had considered the review material as required by s 473CC and s 473DB(1) of the Act.

70    By the second ground of appeal, the appellant contends that the primary judge fell into error by not accepting that the IAA failed to consider the appellant’s claims cumulatively.

71    At [33], the primary judge observes that the IAA twice asserted in its reasons that it had considered the appellant’s claims cumulatively. At para 33 of its decision, the IAA, after having examined all of the claims as earlier described in these reasons, then says this:

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

72    In the section of the IAA’s decision under the heading “Complementary Protection Assessment”, the IAA concludes its discussion of the various factors and facts relevant to the question, with the observation that after having regard to the appellant’s circumstances, both individually and cumulatively, the IAA finds that the appellant does not face a real risk of suffering significant harm: para 42. It is true to say that in the IAA’s decision both at the conclusion of the discussion in relation to whether the appellant holds a well-founded fear of persecution and in relation to the question of whether the appellant faces a real risk of suffering significant harm, the conclusionary observation is made that the relevant factors, and the facts going to the statutory integers, have been considered individually and cumulatively, and in that sense, only one short line can be found in the decision to that effect.

73    Nevertheless, a fair reading of the decision overall makes it plain that the IAA has deliberatively considered the claims, the statutory factors and the facts identified by the appellant and then expressed its view that it has taken those matters into account both individually and also taken them into account together in an aggregated way.

74    That can be seen in the matters described at [58] to [60] of these reasons concerning the observations of the IAA at paras 14, 15 and 17 of the decision.

75    As to other factors to be weighed in the balance, the IAA said this at para 21 about the circumstance of CID officers visiting the appellant’s parents’ house:

At the SHEV interview the applicant stated that his parents remain living in their home [in a particular place]. While the applicant claims that CID officers visited his parents once, there has been no further contact. The available evidence gives no indication that the applicant engaged in any Tamil political or separatist activity in Sri Lanka. In the time that the applicant has been outside Sri Lanka there is no indication that he has engaged in separatist activity or advocated politically, or would be perceived as having done so. On the available evidence and taking into account country information above [being a reference to DFAT 18 December 2015 Report], I am not satisfied the applicant will be considered to have any real or imputed profile that would attract the attention of Sri Lankan authorities. …

76    Also, I accept the Minister’s submission that the IAA took into account the accumulation of factors going to the appellant’s “risk profile” which included his risk of harm as a Tamil (discussed at para 21 as quoted above) and his risk of harm arising out of his illegal departure (at para 32 of the IAA decision) and when considering the appellant’s claims in relation to complementary protection at para 38. Paragraph 32 of the IAA decision is in these terms:

32.    DFAT has reported that it is not aware of any specific post-arrival monitoring of recently returned failed asylum seekers, monitoring and fears about mistreatment have reduced under the current Sirisena government and the risk of harm for the majority of returnees is low [referenced to DFAT 18 December 2015 Report]. While DFAT has noted some reports of mistreatment upon return by the thousands of Tamil asylum seekers, they appear to be related to those who hold an actual or imputed connection to the LTTE [again referenced to the DFAT 18 December 2015 Report]. I do not accept that the applicant will be imputed with separatist or anti-government dissident beliefs by Sri Lankan authorities because of his period as a low level driver for the LTTE, extended residence in a western country or imputed asylum seeking there, either individually or cumulatively. In light of this I find that the applicant does not face a real chance of persecution from Sri Lankan authorities either as a failed asylum seeker or as returnee from the west or for any other reason.

77    Paragraph 38 of the decision, addressing the topic of complementary protection, is in these terms:

38.    The applicant has not claimed to have engaged in any Tamil separatist activity in Sri Lanka and the available evidence is that he was a low level driver who did not play any LTTE leadership role and that he would not be perceived as having done [so]. Given his lack of profile and the changed country circumstances, I find the applicant will not face a real chance of significant harm from Sri Lankan authorities, including the CID, on return to Sri Lanka now or in the reasonably foreseeable future.

78    A fair reading of the decision shows that each of the claims made by the appellant supported by the propositions put by Ms Lim were individually considered and then the factors giving rise to the risk profile were taken into account in an aggregated or cumulative way. Accordingly, I am satisfied that the primary judge did not fall into error at [33] and [34] in concluding that the IAA had considered the appellant’s claims in a cumulative way as asserted by the IAA.

79    I accept that the IAA could have been a little more expansive in its analysis of some factors. However, that does not mean that the IAA did not discharge its statutory obligation to consider the view material. As the reasonably extensive discussion of the propositions put to the IAA (through the review material with references to source material) and the corresponding references to it in the IAA’s decision shows, the IAA considered the review material consistent with the authorities.

80    Accordingly, the appeal must be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal. The orders made by the Court together with reasons explanatory of those orders will be sent to the parties from Chambers. The orders and reasons are published in Court today. However, it will not be necessary for the parties to attend Court.

Associate:

Dated:    10 May 2019