FEDERAL COURT OF AUSTRALIA

BKR16 v Minister for Immigration and Border Protection [2019] FCA 708

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): BKR16 v Minister for Immigration [2018] FCCA 2623 (BKR16). The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

background

2    The appellant is a citizen of Sri Lanka and a Tamil.

3    On 21 August 2013 the appellant lodged an application for a Protection (subclass 866) visa (PV Application). In his statement dated 21 August 2013 accompanying the PV Application the appellant included the following after setting out his claims:

(1)    under the heading “What I fear may happen to me, by who and why, if I return to that country”:

…

27.    I fear I will be harmed by the TMVP paramilitary group.

28.    I fear TMVP paramilitary group because I was politically active in the TNA, a rival party.

…

(2)    under the heading “Why I think the authorities of that country cannot or will not protect me if I were to go back to that country”:

…

32.    This is because TMVP paramilitary group works closely with the Government.

33.    Therefore the Government and other relevant authorities will not help me and I will be targeted by the TMVP paramilitary group.

34.    I fear I will be targeted by the TMVP paramilitary group for actively working with the TNA. I will be detained, tortured and killed.

4    The PV Application was found to be invalid.

5    On 26 October 2015 the appellant lodged his application for a SHEV. In the statutory declaration accompanying that application (Statutory Declaration) the appellant said that he left Sri Lanka because:

(1)    in March 2007 the Sri Lankan Army (SLA) advanced towards his village and he and his family fled the area. They sought refuge in the Mariyamman Temple Refugee Camp for approximately seven weeks until 15 May 2007 while the Liberation Tigers of Tamil Eelam (LTTE), who had controlled the village, withdrew;

(2)    shortly after capturing his village, the SLA set up two special task force (STF) camps in the village;

(3)    after the war ended, the appellant and his family returned to his village. Approximately three days after returning, STF personnel came looking for the appellant and took him to the STF camp where he was interrogated and assaulted because he was suspected of having links to the LTTE. The appellant was detained for one day but was released when the village head intervened;

(4)    after his release from the STF camp, the appellant opened a grocery store and continued to work as a farmer in his local area;

(5)    when the LTTE was in control of the area, the appellant was actively involved in the community in various roles including at the Man Power Sports Club, Sri Pathirakaali Ambal Temple and the Rural Development Society (RDS) as well as being a member of the public vigilance committee from June 2007 to June 2009 after the LTTE had withdrawn from the village;

(6)    at that time the appellant was also involved in organising LTTE functions and propaganda activities through the Man Power Sports Club, which had been set up by members of the LTTE in the 1990s;

(7)    as he held senior positions, both prior to and after the LTTE withdrew, the appellant handled a lot of money sent by overseas donors to the various organisations with which he was associated. While some of the funds were sent directly to the relevant organisations’ bank accounts, large sums were also sent to the appellant’s personal bank account;

(8)    during this period the appellant also had close interactions with Tamil politicians who were members of the Tamil National Alliance (TNA). On 23 April 2012 a photograph of the appellant standing with three TNA Members of Parliament (MPs) was published in a Tamil newspaper;

(9)    on 10 May 2012 the appellant received a threatening letter from the Tamil Makkal Viduthalai Pulikal (TMVP), a Tamil paramilitary group, stating that the appellant: should report at the TMVP office for questioning; should not disclose receipt of the letter to anyone; and, if he did not report for questioning, would face serious consequences;

(10)    the appellant was one of two main organisers of a series of TNA meetings held in Batticaloa from 25 to 27 May 2012. On 24 May 2012 the hall in which the meetings were to be held was burned down by members of the TMVP;

(11)    a few days after the TNA meetings, the organising committee met in a secret location. Some of the attendees parked their vehicles at a nearby house. Members of the TMVP burnt three motorcycles, including the appellant’s, and a three wheeler;

(12)    on 2 June 2012 the appellant received a second warning letter from the TMVP stating that he had ignored their previous letter; had continued to work for the TNA; was required to report to the TMVP office immediately; and, if he did not, he would face serious consequences;

(13)    in August 2012 one of the main TNA organisers was abducted. It was believed that he had been abducted by the TMVP and that, prior to his abduction, he had received letters similar to those received by the appellant;

(14)    on the day that the TNA organiser was abducted a group of armed Tamil men had come to the appellant’s home in search of him. The appellant was not at home at the time and, upon learning of the event, went into hiding at a relative’s place. While in hiding the appellant learnt that armed Tamil men had searched for him at his home, his grocery store, the Hindu temple and other places that he frequented. For this reason the appellant fled Sri Lanka; and

(15)    since being in Australia, the appellant has met TNA MPs who have travelled here. A photo of the appellant with TNA supporters and one of the MPs was published on a Tamil website. The appellant has also been told that the Sri Lankan police had inquired about him and questioned senior members of the RDS about his involvement with it and the Man Power Sports Club; how funds were sent through him for those organisations; and his involvement with the Tamil MPs.

6    In the Statutory Declaration the appellant claimed that if he were to return to Sri Lanka:

(1)    he fears he could “be harmed by members of the Tamil paramilitary groups and the Sri Lankan authorities as [he is] perceived to be an LTTE supporter due to [his] previous involvement as mentioned above”;

(2)    he fears he would be branded as an LTTE supporter or a person with links to the LTTE as he had involvement with Tamil foreign donors;

(3)    because a photo was recently published of him with a group of TNA supporters, including a TNA MP, he believes the authorities would perceive him to be a person who supports the TNA and LTTE;

(4)    he fears he could be abducted by Tamil paramilitary groups because he is from a wealthy family; and

(5)    he fears he could be harmed for having departed Sri Lanka illegally as he could be imprisoned for a long time.

7    On 21 April 2016 a delegate of the Minister refused to grant a SHEV to the appellant. On 26 April 2016 that decision was referred to the Authority for review.

8    On 11 May 2016 the appellant sent the Authority a copy of a statutory declaration made by him on 7 May 2016 and an extract from the Information Book of Kaluwanchikudy Police Station dated 27 April 2016.

9    On 18 May 2016 the Authority affirmed the decision of the delegate to refuse to grant the appellant a SHEV.

the authority’s DECISION

10    After setting out a summary of the appellant’s claims for protection the Authority turned to consider each of the bases upon which the appellant claimed to fear harm namely, as a result of his TNA involvement; his association with the LTTE; being from a wealthy family; and returning as a failed asylum seeker and/or his illegal departure from Sri Lanka. It is the Authority’s consideration of the appellant’s claims to fear harm as a result of his involvement with the TNA and his LTTE association that are at the heart of his appeal.

11    In addressing the appellant’s claim to fear harm from the Sri Lankan authorities and the TMVP on the basis of his support for the TNA, the Authority set out a summary of the events that the appellant said gave rise to that claim. It found that the appellant had been generally credible in relation to his claims and had provided supporting documentary evidence: Authority decision record (DR) at [15].

12    The Authority proceeded to describe the TNA and the TMVP by reference to country information. In relation to the latter, it noted that the TMVP was the political wing of the paramilitary group formerly known as the “Karuna group” which was formed by a breakaway LTTE leader. Among other things, at DR [17] it said:

… The TMVP ceased operating as a paramilitary group, having conducted a handing in of their weapons in Batticaloa in March 2009, supervised by the local police. However, it remains questionable if the TMVP’s arsenal was surrendered in its entirety. DFAT have also reported that TMVP have renounced paramilitary activities, however have noted that while reports are difficult to verify, TMVP has engaged in criminal activity.

(footnotes omitted.)

13    The Authority accepted that the appellant was a supporter of the TNA; his photo had appeared on Tamil websites and in newspapers; and he openly assisted the TNA during the 2012 election campaign in Batticaloa. It also accepted that the appellant received two letters demanding that he attend the TMVP office for questioning; that the appellant went into hiding in August 2012 until his departure in September 2012; and that the reason for his departure was fear of harm from the TMVP: DR at [18].

14    However, the Authority was not satisfied that there was a real chance that the appellant would face serious harm upon his return to Batticaloa from the TMVP now or in the reasonably foreseeable future. At DR [19] it said:

… In the 2015 elections, TNA won a majority of seats in the Northern Provincial Council. A Sri Lanka Muslim Congress (SLMC) Chief Minister took over the Eastern Provincial Council. In October 2015, Pillayan was arrested in association to the murder of a TNA MP in 2005. TMVP currently holds no power and no longer acts in a paramilitary capacity nor do they have the support of the current government. Based on the country information cited above, TNA members and supporters have also gained significant power, now leading the Opposition and holding the majority seats in the Northern Province. I note DFAT has reported that TMVP has engaged in criminal activity, however DFAT have also reported that these reports are difficult to verify. There is also no indication of the nature of the criminal activity which the TMVP have engaged in. Based on the recent country information cited above, I am not satisfied there is a real chance the [appellant] will face serious harm from TMVP and/or any of their members.

(footnotes omitted.)

15    In relation to the appellant’s claim to fear harm from the authorities on the basis of his real and/or perceived association with the LTTE, the Authority found that, given that country information indicated that the Tamil diaspora funded the LTTE, it was plausible that the authorities may perceive the appellant to have funded LTTE activities. The Authority noted that it had accepted that the appellant had been a supporter of the TNA and that the TNA’s alliance to the LTTE prior to its defeat may have contributed to the Sri Lankan authorities’ suspicion of the appellant’s involvement with the LTTE prior to 2007. However, the Authority was not satisfied that the appellant would now face a real chance of serious harm on the basis of having a real and/or perceived association with the LTTE.

16    The Authority accepted that the appellant would have had interactions with the LTTE and its cadres on a frequent basis. After referring to country information, the Authority observed that the appellant had not claimed to have been involved in any fighting with the LTTE but claimed that he was involved in supporting propaganda activities for the LTTE through the Man Power Sports Club and was perceived to have supported LTTE activities through the temple and the RDS, which it accepted: DR at [24].

17    The Authority then addressed the appellant’s claim that he had been arrested for one day in 2007. At DR [25]-[26] it said:

25.    … I accept the [appellant] was arrested however I am not satisfied the [appellant] was released on the basis of a village elder intervening. Based on the country information cited, I find it more likely the [appellant] was released because he was of no interest to the Sri Lankan authorities and was not linked to LTTE activities. In the statutory declaration to the IAA, the [appellant] stated that the village elder required his assistance and therefore requested his release, however I find this to be implausible given the country information cited above in relation to the Sri Lankan army and authorities sending those arrested to the government run rehabilitation camps. At the SHEV interview the [appellant] confirmed he had never been sent to such a camp.

26.    If I accept that funds were transferred into the [appellant’s] personal bank account from the Sri Lankan diaspora, upon the LTTE defeat in his local area and at the time of his arrest, the Sri Lankan authorities questioned him but given he was released after one day, was not sent to a rehabilitation camp nor was he questioned any further or monitored, I find the authorities did not suspect him to have used these funds to support LTTE activities. Country information cited above indicates that any association with the LTTE was grounds for arrest and arrests continued until after the conflict was over. Subsequent to the LTTE defeat and until his departure from Sri Lanka in 2012, the [appellant] did not face any adverse interest from the authorities apart from the one arrest in 2007 where he was released after one day. I also note that during this period, the [appellant] held positions in the administrative functions for his local temples, sports club and RDS, which are government sanctioned structures of elected community members to channel public and international assistance. He also became a senior member of the Public Vigilance Committee in June 2007. …

(footnotes omitted.)

18    The Authority observed that, apart from the appellant’s arrest in 2007, he did not face any harassment from the SLA or Sri Lankan authorities prior to his departure from Sri Lanka in 2012. The Authority noted that the appellant collaborated with the government through his position on the public vigilance committee and that there was no evidence that the Sri Lankan authorities would now be interested in the appellant on the basis of his real or imputed association with the LTTE. While the Authority accepted that the appellant had some links to the LTTE through his work at the sports club it found that those links were not of concern to the SLA or the Sri Lankan authorities given that the authorities investigated that matter in 2007, released the appellant after one day and did not question or monitor him any further. The Authority did not accept that the appellant’s involvement in money transfers led the authorities to suspect him of involvement in LTTE funding or activities.

19    The Authority accepted that the appellant is a Tamil from the Eastern Province but found that he would not face a real chance of serious harm on that basis. The Authority also considered and rejected the appellant’s claim to fear harm because he is from a Tamil caste perceived to be wealthy because of their involvement in jewellery making.

20    The Authority considered the appellant’s claim to fear harm because of his illegal departure from Sri Lanka and because he would be returning as a failed asylum seeker. It accepted that the appellant would be charged under the Immigrants and Emigrants Act 1949 because of his illegal departure and that there was a chance he would be detained for up to 24 hours if a magistrate was unavailable. The Authority found that any detention would be brief, that the process which the appellant would be required to undergo was not applied in a discriminatory manner and that any brief period of detention and/or the imposition of a fine would not rise to the level of a threat to the appellant’s life or liberty or to significant physical harassment or ill treatment or any other form of serious harm. The Authority concluded that there was not a real chance the appellant would face serious harm on the basis of his illegal departure from Sri Lanka now or in the reasonably foreseeable future. Similarly, the Authority was not satisfied that the appellant had a well-founded fear of persecution as a failed Tamil asylum seeker who departed Sri Lanka illegally.

21    Having considered the appellant’s circumstances individually and cumulatively the Authority was not satisfied that his claims gave rise to a well-founded fear of persecution and thus concluded that the appellant was not a refugee as defined in s 5H(1) and did not meet the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (Act).

22    The Authority then considered whether the appellant would be entitled to complementary protection but, upon considering his claims, found that he did not meet the requirements of s 36(2)(aa) of the Act.

The Federal Circuit Court Proceeding

23    In his amended application filed in the Federal Circuit Court on 19 July 2017 (Amended Application), the appellant raised three grounds of review but, as became apparent at the hearing of the appeal before me, only “ground 4” is the subject of the appellant’s further amended notice of appeal filed in this Court on 4 March 2019 (Further Amended Notice of Appeal). In that ground the appellant alleged:

The IAA failed to consider its own findings when assessing if the [appellant’s] fear was well founded and when applying the real chance test

PARTICULARS

(i)    The IAA accepted the following (subjective elements),

a.    The [appellant] is a supporter of the TNA and that his photographs have appeared on Tamil websites and newspapers [18].

b.    The [appellant] openly assisted the TNA during 2012 election campaign [18].

c.    The [appellant] received two letter demanding him to attend the TMVP office for questioning [18].

d.    The IAA reviewer found it plausible at [22] that the Sri Lankan authorities may perceive the [appellant] to have funded LTTE activities.

e.    The IAA reviewer accepted that the [appellant] “would have had interactions with the LTTE and its cadres on a frequent basis” [24].

f.    The IAA reviewer accepted that the [appellant] was involved in supporting propaganda activities for the LTTE through the Manpower Sports Club and perceived to have supported LTTE activities through the temple and RDS [24]. This was reiterated at [28].

g.    The IAA reviewer accepted that the [appellant] was arrested for one day in 2007 by the army [25].

h.    The IAA reviewer accepted that the [appellant] “did have money transferred to his personal account, potentially from overseas donors...” [28].

(ii)    The IAA accepted the following (objective elements),

a.    Excerpts of the DFAT report which states the TMVP, being a Tamil paramilitary group “has engaged in criminal activity” [17] appears to have to have been accepted though the IAA at [19] notes that “There is no Indication of the nature of the criminal activity which the TMVP have engaged in”.

b.    At [27] the IAA accepted that “some RDS have been subjected to harassments by the occupying Sri Lankan military.

24    The primary judge considered ground 4 at [29]-[39] of his reasons.

25    Based on the appellant’s submissions, the primary judge understood ground 4 to claim, at least in part, that the Authority “did not consider, or actively consider, whether the findings it made in relation to the [appellant’s] conditions, activities, and circumstances, taken cumulatively, give rise to a real chance of significant harm if the [appellant] were to return to Sri Lanka”. That is, the appellant alleged that the Authority in this case made the same error as it was found to have made in DDK16 v Minister for Immigration and Border Protection [2017] FCCA 353: BKR16 at [32].

26    The primary judge referred to the decision of a Full Court of this Court in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (DDK16). His Honour then noted that the Authority in this case had considered each of the appellant’s claims individually and concluded in relation to each that it was not satisfied that the appellant had a well-founded fear of persecution or that he faced a real risk of significant harm. The primary judge also noted that the Authority had considered whether, when considered cumulatively, the findings it had made in relation to each of the appellant’s claims satisfied it that the appellant had a well-founded fear of persecution, or that there was a real risk the appellant would suffer significant harm, and that it answered both these questions adversely to the appellant. The primary judge was satisfied that in answering these two questions the Authority did not apply a mere verbal formula but that it actively engaged with the questions: BKR16 at [35].

27    The primary judge also found that, as the Authority did not accept that any of the claims it considered the appellant to have made gave rise to a well-founded fear of persecution or to a real risk of significant harm, the comments in DDK16 applied equally to the case before him. That is, as the Authority had dismissed all of the appellant’s claims, as ‘“a matter of inexorable logic’ no ‘amount of “cumulative consideration” of those rejected claims [was] capable of producing a different result’”: BKR16 at [36] quoting DDK16 at [34].

28    At [37]-[38] the primary judge considered and rejected oral submissions made by the solicitor for the appellant. It is these paragraphs that are sought to be impugned by ground 3 of the appellant’s Further Amended Notice of Appeal (see [35] below). The submissions made were: first, that having made the findings in relation to the appellant and the TMVP, the Authority could only have been satisfied that the appellant did not have a well-founded fear of persecution or did not face a real risk of significant harm if there was evidence, which the appellant submitted was absent, that the current government was taking steps to prevent the TMVP’s criminal activities; and secondly, that the Authority did not consider the risk the appellant would face from the TMVP’s criminal activities if he were to return to Sri Lanka.

29    In rejecting these submissions at [38] the primary judge said:

… The IAA specifically considered the [appellant’s] claim based on his fears of the TMVP and concluded it was not satisfied the [appellant] had a well-founded fear of persecution on account of the TMVP now or in the reasonably foreseeable future, or that the [appellant] would suffer significant harm from the TMVP. The IAA identified in its reasons for decision the matters it took into account in so concluding; and the matters on which the IAA relied were reasonably capable of supporting the IAA’s conclusion.

30    Although not expressly referred to by the appellant in his Further Amended Notice of Appeal it is also relevant to have regard to [43]-[44] of BKR16 where the primary judge considered ground 5 of the Amended Application in which the appellant alleged that the Authority failed to consider a claim which was “clearly evident on the facts” when assessing his claims against the criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The particulars to ground 5 refer to DR [17] and DR [19] and the appellant contended that the Authority appears to have accepted the Department of Foreign Affairs and Trade (DFAT) information that the TMVP has engaged in criminal activity while also noting that the criminal activity engaged in by the TMVP was unknown.

31    The primary judge noted that there seemed to be an error in the way the particulars to ground 5 were framed but took the ground to contend that there was a claim before the Authority that the appellant feared significant harm from the criminal activities of the TMVP and that the Authority did not consider that claim. In addressing that ground the primary judge said at [43]-[44]:

43.    The IAA considered the [appellant] made a claim based on fear of harm from the TMVP; and the IAA assessed that claim. In assessing the claim, the IAA referred to country information. Part of the information was the DFAT report which reported that the TMVP has engaged in criminal activity. As I have already recorded, the IAA noted the DFAT report said reports of criminal activity are difficult to verify; and the IAA further noted there is no indication of the criminal activity in which the TMVP has engaged.

44.    To the extent, therefore, that the information concerning the criminal activities by the TMVP to which the IAA referred can be considered to be a claim of fear based on the criminal activities by the TMVP, the IAA did consider it. The IAA found that the information before it did not permit it to identify the nature of the TMVP’s criminal activities. I do not understand ground 5 to claim, or the [appellant] to submit, there was material before the IAA which ought reasonably to have suggested the nature of the TMVP’s criminal activities, and the IAA failed to address that information. Nor do I understand ground 5 to claim, or the [appellant] to submit, it was not reasonably open to the IAA to find that the information before it did not permit it to identify the nature of the TMVP’s criminal activities.

THE APPEAL

32    In his amended notice of appeal filed on 24 January 2019 (Amended Notice of Appeal) the appellant raised two grounds of appeal. It became apparent in the course of argument on the first day of the hearing that ground 1 of the Amended Notice of Appeal did not, as its terms suggested and as the Minister had apprehended, seek to challenge ground 3 of the Amended Application but sought to challenge ground 4 of the Amended Application. After hearing from the appellant, I made orders granting leave to the appellant to file further submissions summarising the oral submissions that he had made and, if necessary, annexing a further amended notice of appeal and for the Minister to file submissions in reply.

33    As a result of those orders the appellant filed further submissions to which he annexed the Further Amended Notice of Appeal which raised four grounds: the two grounds included in the Amended Notice of Appeal and two additional grounds as grounds 3 and 4. At the resumed hearing the appellant’s solicitor informed the Court that the appellant no longer pressed grounds 1 and 2 and relied only on grounds 3 and 4 in the Further Amended Notice of Appeal.

34    At the conclusion of the adjourned hearing, I made an order granting leave to the appellant to file the Further Amended Notice of Appeal amended to reflect the fact that he no longer pressed grounds 1 and 2. As to the remaining grounds, the appellant informed the Court that ground 3 seeks to challenge the primary judge’s reasons and findings at [37]-[38] of BKR16 and that ground 4 flows from ground 3. However, despite the appellant’s characterisation of ground 4, it is apparent that it is new and that the appellant requires leave to rely on it, a matter which I consider below.

Ground 3

35    Ground 3 is in the following terms:

The Authority failed to take into account the claims made by the Appellant.

Particulars

a)    The Authority erred in finding that there is not a real chance that the [appellant] will face serious harm from the TMVP.

b)    The Authority referred to DFAT reports which noted that the TMVP has engaged in criminal activity.

c)    This goes against the Authority’s finding that the TMVP are no longer a threat in Sri Lanka.

d)    The Authority failed to take into account that the TMVP still exists in Sri Lanka in a different capacity as a criminal gang and therefore, the Appellant fears harm from the TMVP.

The appellant’s submissions

36    The appellant made oral submissions and relied on his further written submissions in support of this ground. In his oral submissions made on the first day of the hearing the appellant relevantly said that:

    a major element of his fear was from the TMVP, which at the time was a paramilitary arm of the LTTE;

    at DR [17] the Authority found that the TMVP had stopped operating as a paramilitary group but that it had engaged in criminal activity and accordingly it was apparent that the TMVP still exists;

    at DR [18] the Authority accepted that the appellant was a TNA supporter and found it was plausible that he had received two letters demanding him to attend the TMVP office for questioning; and

    also at DR [18] the Authority found that the reason for the appellant’s departure was his fear of the TMVP.

37    The appellant submitted that the Authority had then questioned whether, notwithstanding those findings, it was open to it to find that there was not a real chance that he would face serious harm from the TMVP upon his return to Batticaloa; the Authority was in fact not satisfied that the appellant would face serious harm from the TMVP upon his return; and the Authority found that the TMVP currently holds no power, no longer acts as a paramilitary group and does not have the support of the government. The appellant said that in making that latter set of findings the Authority ignored its earlier finding that the TMVP still exists in the guise of a criminal gang. He contended that, having found that the TMVP was still active in some capacity, the Authority failed to ask itself whether the TMVP remained a threat to the appellant in that capacity.

38    The appellant also made submissions about the Authority’s findings in relation to his claims to fear harm on the basis of his real and/or perceived association with the LTTE at DR [21]-[30]. Relevant to ground 4, the appellant submitted that it was his involvement with the TNA and the TNA’s link with the LTTE that came together to form the link for his perceived association with the LTTE.

39    In his supplementary written submissions, which address grounds 3 and 4, the appellant submitted that the Authority failed to take into account all of his claims; it stated that DFAT had reported that the TMVP had renounced paramilitary activities but also noted that, while reports were difficult to verify, the TMVP has engaged in criminal activity; and it accepted that the appellant went into hiding until his departure in 2012 and his fear of harm from the TMVP was the reason he departed Sri Lanka.

40    The appellant further submitted that the Authority “implies that there is no realistic fear of harm from the TMVP, however, the Authority misunderstands the capacity the TMVP currently exists in, which is that of a criminal gang”. Relevant to ground 4, which I consider commencing at [50] below, the appellant contended that in acknowledging the DFAT report in which it was said that the TMVP has engaged in criminal activity, the Authority had failed to ask itself “would the TMVP still seek to harm those that it suspected of assisting the LTTE while it operated as a paramilitary group”.

41    Finally the appellant sought to rely on the decision in BBE17 v Minister for Immigration and Border Protection [2019] FCA 573 (BBE17) at [45] where Murphy J recorded that counsel for the Minister in that case “accepted that it is fair to infer that the TMVP is still active in Sri Lana [sic] and that it was in a position to harm a returnee if it had reasons to do so”.

Consideration

42    In its terms ground 3 does not assert error on the part of the primary judge. However, given the appellant’s submissions, I understand that by this ground he asserts that the primary judge erred in rejecting the oral submissions made at the hearing which are recorded at [37] of BKR16 (see [28] above).

43    At DR [17] the Authority described the TMVP as “the political arm of the paramilitary group formerly known as the ‘Karuna group’” and set out its history. As set out at [12] above the Authority observed that the TMVP ceased operating as a paramilitary group after handing in its weapons in 2009. By reference to the “DFAT Country Information Report - Sri Lanka” dated 18 December 2015 (DFAT December Report) the Authority noted that DFAT reported that the TMVP had renounced paramilitary activities but that it had also reported that, while difficult to verify, there were reports that the “TMVP has engaged in criminal activity”.

44    At DR [19] (see [14] above) the Authority found that it was not satisfied that there was a real chance that the appellant would face serious harm from the TMVP upon his return to Batticaloa then or in the reasonably foreseeable future and set out its reasons for reaching that conclusion, including noting that the TMVP no longer acts in a paramilitary capacity, holds no power and does not have the support of the current government, while the TNA had gained significant power. The Authority also observed that “DFAT has reported that TMVP has engaged in criminal activity, however DFAT have also reported that these reports are difficult to verify. There is also no indication of the nature of the criminal activity which the TMVP have engaged in”. The Authority concluded that “[b]ased on the recent country information” it was not satisfied that there was a real chance that the appellant would face serious harm from the TMVP and/or any of its members.

45    The Authority had regard to the DFAT December Report and, in particular, as reported therein, that the TMVP had engaged in criminal activity. Insofar as the Authority did so, it did not misunderstand the “capacity the TMVP currently exists in”. It expressly referred to the fact that the TMVP was no longer a paramilitary group but was reported to have engaged in criminal activity, first at DR [17] and then at DR [19], in assessing whether the appellant would face a real chance of serious harm on his return to Sri Lanka from the TMVP.

46    As the Minister submitted, and I accept, the appellant did not expressly make a claim that he feared harm from the TMVP because the TMVP engaged in criminal activity. However, if I am wrong about that and such a claim could be said to have arisen on the material, that claim was, in any event, considered and disposed of by the Authority at DR [19].

47    The primary judge also found that to be so. His Honour found that the Authority “specifically considered the [appellant’s] claim based on his fears of the TMVP and concluded it was not satisfied the [appellant] had a well-founded fear of persecution on account of the TMVP either now or in the reasonably foreseeable future, or that the [appellant] will suffer significant harm from the TMVP”: BKR16 at [38]. In the same paragraph, the primary judge noted that the Authority identified in its reasons “the matters it took into account in so concluding; and the matters on which the IAA relied were reasonably capable of supporting the IAA’s conclusion”. Those matters included the report that the TMVP engaged in criminal activity. Similarly at [43]-[44] of BKR16 the primary judge found that, to the extent there was a claim to fear harm based on the criminal activities of the TMVP, the Authority had considered that claim.

48    The appellant’s reliance on BBE17 at [45] does not assist him. In that case the appellant succeeded in establishing that the Authority failed to deal with an integer of his claim to fear serious or significant harm if he returned to Sri Lanka, namely that his brother had returned to Sri Lanka from Indonesia in 2013 and disappeared. The claims made by the appellant in BBE17 and the facts underpinning those claims were entirely different to the claims made and the underlying facts relied on by the appellant in this case. The concession made by the Minister and recorded at [45] of BBE17 was made in the context of the claims made and issues that arose in that case and could only be taken to have been made for the purposes of that case. No such concession has been made in this case and there is no basis on which the appellant can rely on the concession made by the Minister in BBE17.

49    There was no error in the primary judge’s treatment of the appellant’s submissions recorded at [37] of BKR16. Ground 3 fails to make out any appellable error as alleged.

Ground 4

50    Ground 4 provides that:

The Authority failed to ask itself the right question.

Particulars

(a)    The Authority acknowledged the DFAT reports that the TMVP has engaged in criminal activity.

(b)    The Authority failed to ask whether the TMVP still seek to harm those that it suspected of assisting the LTTE while it operated as a paramilitary group.

51    The appellant contended that this ground followed from ground 3 but, as I have already observed at [34] above, it is clear that this ground was not raised below. The appellant thus requires leave to rely on it for the first time on appeal.

52    In BBE17 at [16]-[20] Murphy J set out the principles relevant to a grant of leave to rely on a new ground on appeal, noting that an appellate court has discretion to permit an appellant to raise a new ground on appeal where it considers it is “expedient in the interests of justice to entertain the issue and where the proposed new ground could not possibly have been met by calling evidence in the hearing below”: citing Water Board v Moustakas (1988) 180 CLR 491 at 497. At [18] Murphy J referred to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] where Madgwick J (with whom Conti J agreed) set out the following non-exhaustive list of the considerations relevant to a grant of leave to raise a new ground on appeal:

(a)    Do the new legal arguments have a reasonable prospect of success?

(b)    Is there an acceptable explanation of why they were not raised below?

(c)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

(d)    What is at stake in the case for the appellant?

(e)    Will the resolution of the issues raised have any importance beyond the case at hand?

(f)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

(g)    If so, can it be justly and practicably cured?

(h)    If not, where, in all the circumstances, do the interests of justice lie?

53    Given his view that ground 4 is not new, the appellant has not explained why it was not raised below; the Minister does not point to any prejudice that would arise if leave to raise the ground was granted and in fact made submissions in response to it; there is no significant dislocation to the Court or use of judicial resources in permitting the ground to be raised; and, given the appellant is an asylum seeker, there is understandably much at stake for him. Whether leave should be granted to raise the new ground on appeal in this case ultimately turns on the prospects of success of ground 4 which I now turn to consider.

The parties’ submissions

54    The question which the appellant alleges the Authority failed to ask itself is whether the TMVP would still seek to harm those that it suspected of assisting the LTTE while it operated as a paramilitary group. Insofar as the appellant made submissions in support of this ground they are set out at [38] to [40] above.

55    In order to address the merits of this ground it is first necessary to consider whether the appellant made a claim to the effect that he feared harm from the TMVP by reason of his past association with the LTTE.

56    The appellant’s claims were set out in his statement provided with his PV Application and in the Statutory Declaration. In the former, the appellant claimed to fear harm from the TMVP paramilitary group because he was politically active in the TNA and expressly stated that he would be targeted by the TMVP because he actively worked with the TNA (see [3] above). In that statement the appellant made no claim to fear harm from the TMVP because of any association with the LTTE. In the latter at [37] the appellant said he feared he “could be harmed by members of the Tamil paramilitary groups and the Sri Lankan authorities” because he is “perceived to be a LTTE supporter due to [his] previous involvement as mentioned above” (see [6] above).

57    The Minister submitted that [37] of the Statutory Declaration does not amount to a claim on the part of the appellant that he feared serious harm from the TMVP on the basis of a suspected association with the LTTE. The Minister contended that [37] does not refer to the TMVP and that where the appellant does identify the TMVP it is to claim that he fears harm from the TMVP because of his association with the TNA, as set out at [19]-[29] of the Statutory Declaration. In other words the Minister urges that [37] of the Statutory Declaration should be read disjunctively such that the appellant could be seen to be making two points: first, that he feared harm from Tamil paramilitary groups; and secondly, that he feared harm from the Sri Lankan authorities because he was perceived to be an LTTE supporter “due to [the appellant’s] previous involvement as mentioned above”.

58    The Minster further submitted that if, contrary to his submissions recorded above, [37] of the Statutory Declaration was sufficient to give rise to a claim to fear harm from the TMVP because of the appellant’s association with the LTTE, it was not a claim that was made in the relevant sense because it did not rely upon “established facts”. The Minister contended that the appellant never put before the delegate or the Authority any material that suggested that he was the subject of adverse attention from the TMVP because of his LTTE activities.

Consideration

59    Insofar as the issue of whether a claim arises on the material before a decision-maker is concerned, in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58] and [60] a Full Court of this Court (Black CJ, French and Selway JJ) said:

58    The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an [appellant] if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the [appellant]: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

…

60    In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the [appellant] advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made” (at [16]). Selway J however went on to observe in SGBB (at [17]):

But this does not mean the application is to be treated as an exercise in 19th Century pleading.

His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:

The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.

His Honour, in our view, correctly stated the position when he said (at [18]):

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

This does not mean that the Tribunal is only required to deal with claims expressly articulated by the [appellant]. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

60    At [61] the Full Court observed that a tribunal is not required to consider a case not expressly made or which does not arise clearly on the materials before it, but that its review obligation extends to reviewing the delegate’s decision on the basis of all the material before it. At [63] the Full Court said:

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the [appellant] and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the [appellant], and is misunderstood or misconstrued by the Tribunal.…

61    In relation to his latter submission, summarised at [58] above, the Minister referred to and relies on SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 at [38] where I relevantly said:

Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

62    The Minister also relies on AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [77]-[80], [82]-[85] where, among other things, Barker J said:

77    The Minister adds that the appellant never put forth any “established facts” in support of the alleged claim. In this regard, no evidence was ever put before the Tribunal that suggested that the SLA imputed TNA supporters with LTTE supporter profiles. See SZQTW v Minister for Immigration [2012] FMCA 777 at [11] (Raphael FM); MZANX v Minister for Immigration [2016] FCCA 2654 at [55] (Wilson J). In fact, the evidence before the Tribunal was at odds with this. A claim being based on established facts is a threshold requirement to it being sufficiently raised so as to require a decision-maker to consider it: SZUTM at [38] (Markovic J).

78     If the alleged claim was raised (which the Minister denies), he says it could hardly be said to be a substantial one. It would be, at best, a claim that was incidental to – and at the outer periphery of – the appellant’s claim to be at risk from the SLA on account of his TNA links.

79    Thus, the Minister submits, viewed as whole, no clear attempt was ever made by the appellant to link his TNA support to an imputed LTTE supporter profile. The clear focus of his attempt to suggest that an LTTE supporter perception arose was on account of the three facts identified.

80    The Minister thus contends that the appellant’s attempt to raise “one convoluted and equivocal paragraph” of a written submission (in the context of having made voluminous submissions during the course of the matter) – in an illogical and technical way, and in a way which: (1) found no support in the balance of the agent’s written submission; (2) ran against the way the appellant had presented his case over time and at the Tribunal hearing; and (3) lacked evidential support – was far from the presentation of a “substantial, clearly articulated claim relying on established facts”. That is particularly so when regard is had to the fact that the appellant was, at all relevant stages, assisted by lawyers and migration agents in the formulation of his claims.

…

82    In my view, this ground 3 of the appeal fails, principally for the reasons advanced in the Minister’s notice of contention.

83     The ground and the arguments pressed in support of it by the appellant are artificial in the extreme. The manner in which the issue to which this ground relates had historically been pursued and dealt with in the Tribunal, and all the evidence led in the Tribunal focussed on an issue quite different from that which the appellant now wishes to contend for. He now seeks to read point 3 in isolation and to construe it as though it were a statutory provision.

84    For all the reasons the Minister has contended for, and I have set out above, viewed as a whole no clear attempt was ever made by the appellant to link his TNA support to an imputed LTTE supporter profile. The clear focus of his attempt to suggest that an LTTE supporter perception arose was on account of the three factors identified earlier.

85    As a consequence, for the reasons contended for by the Minister, the notice of contention is upheld.

(emphasis in original.)

63    I accept that the appellant’s statement attached to the PV Application does not raise any claim that the appellant fears harm from the TMVP because of an association with the LTTE. Paragraph 37 of the Statutory Declaration is unclear in its terms, but it must be read in the context of the claims made in the Statutory Declaration as a whole and not in isolation, particularly given the express reference to the appellant’s “previous involvement as mentioned above”. When it is read in this way, the following emerges:

(1)    the appellant notes that the village in which he was born is a former LTTE controlled area (at [3]-[4]);

(2)    the appellant recounts that he and his family fled from his village in 2007 when the SLA advanced and sought refuge in a camp while the LTTE withdrew, upon returning to his village he was interrogated and detained by STF personnel because he was suspected of having links to the LTTE, when the LTTE controlled the area in the past he was involved in a number of community organisations and in organising LTTE functions and propaganda activities through the Man Power Sports Club and, after the LTTE withdrew he handled a lot of funds, including by having them transferred through his own account, that were provided to those organisations by overseas donors (at [8]-[18]);

(3)    commencing at [19] the appellant refers to his association with the TNA, including that he was one of the organisers of TNA meetings, the threatening letters he received from the TMVP and the vandalism that the TMVP committed in connection with the TNA meetings, the abduction of the one of the main TNA organisers believed to have been carried out by the TMVP and searches undertaken by armed Tamil men of his home, grocery store and other places he frequented; and

(4)    since being in Australia the appellant has met TNA MPs, a photo of him with one of them has been published on a Tamil website and the Sri Lankan police have inquired about him, how funds were sent from overseas via his account and his involvement with Tamil politicians.

64    When one has regard to the Statutory Declaration as a whole it is apparent that [37] can only be read in the way contended for by the Minister. That is, that the appellant fears harm from Tamil paramilitary groups (although not expressly stated, presumably because of his association with the TNA) and that he fears harm from the Sri Lankan authorities because he is perceived to be an LTTE supporter as described in that part of the Statutory Declaration summarised at [63(2)] above.

65    Even if I am wrong about that and [37] of the Statutory Declaration could be read such that the appellant was claiming that he feared harm from the Tamil paramilitary groups because of his association with the LTTE, the appellant did not rely on any facts or other material that linked his perceived association with the LTTE with his fear of harm from the TMVP or that suggested he was the subject of adverse attention from the TMVP because of his perceived association with the LTTE. The analysis at [63] above bears that out. That is, there were no established facts put forth in support of the alleged claim that he feared harm from the TMVP because of his perceived association with the LTTE.

66    That being so it follows that the Authority did not fail to ask itself the right question. In the circumstances, that question never arose.

67    In light of the above in my opinion ground 4 lacks merit. I do not grant leave to raise it on appeal.

conclusion

68    For those reasons the Further Amended Notice of Appeal should be dismissed and the appellant ordered to pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    22 May 2019