FEDERAL COURT OF AUSTRALIA

BJW17 v Minister for Home Affairs [2019] FCA 813

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must 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

FARRELL J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 21 December 2018: BJW17 v Minister for Immigration and Border Protection [2018] FCCA 3572. The primary judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (or IAA) to affirm a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven Enterprise (Class XE, subclass 790) visa (SHEV).

2    The appellant is a citizen of Sri Lanka from the Northern Province and of Tamil ethnicity. He arrived at the Cocos (Keeling) Islands in October 2012 as an unauthorised maritime arrival.

Background

3    The appellant lodged his application for a SHEV on 18 March 2016. The application was accompanied by a written statement dated 14 March 2016 (claims statement) setting out the appellant’s claims to protection.

4    In summary, the appellant claimed to fear that he will be subjected to serious harm, including death, at the hands of Sri Lanka’s Criminal Investigation Department (CID), the Sri Lankan Police and other government agencies, as well as paramilitaries, due to his previous assistance to the Liberation Tigers of Tamil Eelam (LTTE); an imputed pro-LTTE political opinion due to his cousin’s involvement with the LTTE; his status as a Tamil male from Sri Lanka’s Northern Province; and his status as a failed asylum seeker who departed Sri Lanka illegally.

5    The delegate’s decision to refuse to grant the appellant a SHEV made on 16 September 2016 was referred to the Authority on 20 September 2016. The Authority made its decision to affirm the delegate’s decision on 2 March 2017.

Appellant’s factual claims

6    The Authority summarised the appellant’s factual claims in its decision record (or DR) at DR[5] of its reasons:

•    The applicant was born in [redacted] and lived all his life in Jaffna, in the Northern Province of Sri Lanka. From birth until approximately 1990 he lived in [redacted], Jaffna; 1990 to 1995 approximately he lived in Singapore; from June 1996 to May 2010 he lived in [redacted] Jaffna, from May to September 2010 he lived in a refugee camp in [redacted]; from September 2010 to May 2011 he lived in [redacted] and from May 2011 to September 2012 he lived again in his home district in [redacted] Jaffna. The applicant married in [redacted] and his wife and three children aged between [redacted] and [redacted] live in [redacted]. The applicant’s parents and three siblings also live in [redacted].

•    From 1996 to 2012, the applicant worked as a branch manager of a cooperative which sells rice and other basic foods. The LTTE controlled the areas where the applicant lived and the applicant sold them rice and other basic foods and occasionally transported LTTE members on his motorcycle.

•    The applicant’s cousin was a truck driver with the LTTE for approximately eight years. The applicant accompanied his cousin several times when he delivered meals and other goods to the LTTE. The Sri Lankan government was not aware that the applicant assisted the LTTE or that he had a cousin involved with the LTTE.

•    In early September 2012, the applicant was riding his motorcycle to work and was stopped by two masked men carrying weapons. They asked him for 300,000 to 400,000 rupees. The applicant did not have the money so they came to the applicant’s home later that night and took some gold owned by the applicant. The applicant believes the men were either from the CID, the army or some other government authority as no other group in Sri Lanka operates this way.

•    The applicant was stopped by the CID and police at a checkpoint. They told him to buy them cigarettes and food which he did with his own money. They then told him to leave his motorcycle with them for the day and if he did not they would beat him or kill him so he gave them his motorcycle. In the evening when he returned they gave him back his motorcycle but it had no petrol and he had to push it home.

•    The applicant was targeted this way because he is a Tamil and because the CID knew that he had a good job. His brothers both own shops in Colombo and his brother-in-law has a good job in [redacted].

•    The CID stopped the applicant on his way to work every day for about a week and took his motorcycle each time. They gave him a bicycle to use to get to work and returned his motorcycle to him in the evening. The applicant has seen many Tamils harassed this way and heard about a Tamil man badly beaten after he refused to hand over his van.

•    The applicant became afraid of what might happen to him so he sold his motorcycle and moved his family about 60km away to [redacted]. The applicant stayed there for about a week and then departed to Australia as he believed the CID would find him and he was not safe.

•    After the applicant arrived in Australia, in or around 25 December 2012, his father was kidnapped by the CID or another government agency. His father told him that men approached him at the bus stop and asked him where the applicant was and where his motorcycle was. The men stole his father’s money and jewellery, detained him overnight and returned him to the bus stop the next morning.

•    The applicant fears he will be put in prison, beaten and even killed for leaving Sri Lanka He is afraid that his relatively high profile puts him at risk of harm from the CID, the police and other government agencies and paramilitaries. He will not be protected because he is Tamil. He would not be safe anywhere in Sri Lanka as the CID agents know him and Tamils are at risk everywhere in Sri Lanka.

7    Because where the appellant’s wife and children live was mentioned by him at the hearing of the appeal, I note that at DR[9], the IAA mentions that at the SHEV interview, the appellant told the delegate that his wife and children live with her family in the town from which he claims to have left Sri Lanka and that his brothers live and work in Colombo.

8    The Authority noted at DR[3]-[4] that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth), but no further information was obtained or received.

The Authority’s reasons for decision

9    The Authority noted the terms of ss 5H and 5J of the Migration Act at DR[6] and [7] and set those sections out in full in the annexure to the decision record. Section 5H defines the circumstances in which a person is a “refugee” for the purposes of the Migration Act and Migration Regulations 1994 (Cth) and s 5J defines the meaning of “well-founded fear of persecution”.

10    The Authority considered whether the appellant had a well-founded fear of persecution on the basis of his links to the LTTE at DR[9]-[21]. It is that issue which formed the basis of his judicial review application and the appeal.

11    The Authority accepted the appellant’s claims that his cousin was involved with the LTTE as a truck driver for approximately eight years, that he accompanied his cousin several times delivering meals and other goods, that he was a branch manager at the local cooperative where he sold rice and other basic foods to the LTTE and occasionally transported them on his motorcycle: DR[10].

12    It was also “prepared to accept” the appellant’s claim that his maternal cousin had been in detention for eight years up to 2016 because he drove a truck for the LTTE for about eight years, even though he made that claim for the first time at his SHEV interview and country information indicated that most low-profile former members of the LTTE including those involved in the supply and transport of goods for the LTTE were arrested and detained in rehabilitation centres and the majority had been released: DR[11].

13    In assessing the chance of the appellant facing harm in the future because of his and his cousin’s links with and support provided to the LTTE, the Authority noted that the appellant had stated that the Sri Lankan government was not aware of his involvement with and the support he provided for the LTTE or that he had a cousin involved with the LTTE: DR[11].

14    The Authority noted (at DR[12]) that:

(1)    The appellant did not claim that he had ever been questioned or interrogated about his cousin or his links with the LTTE. The Authority again noted that the appellant stated that the Sri Lankan government did not know about his cousin and was not aware of the support he provided to the LTTE; and

(2)    The appellant had not been detained under the Emergency Regulations or the Prevention of Terrorism Act 1978 (Sri Lanka).

The Authority went on to note country information which referred to a 2010 report by the International Commission of Jurists in which it was stated that “any association with the LTTE at that time was grounds for arrest”, the “large majority of those arrested were sent to Government-run rehabilitation centres”, a “smaller number were prosecuted through Sri Lanka’s court system” and many civilians were questioned and released towards the end of the conflict. It also refers to an 18 December 2015 report by the Department of Foreign Affairs and Trade (DFAT) which noted that “[i]n the north and east, Sri Lankan forces maintain a significant presence and a high level of awareness of the civilian population of the area” and that according to a 2013 survey by the United Nations High Commissioner for Refugees (UNHCR), 87% of mostly Tamil internally displaced people had returned to their homes in the north and east and been registered by the military and 71% had been visited by the military or CID for interviews.

15    The Authority noted that the appellant did not claim that he had been detained, interrogated, arrested or questioned and released on suspicion of involvement with the LTTE, and on that basis it was satisfied that, in the past, he had not been regarded by Sri Lankan authorities as a member or supporter of the LTTE: DR[13].

16    The Authority noted that, on 8 January 2015, the Sirisena government replaced that of Mahinda Rajapaksa and, according to DFAT, forced registrations of Tamils no longer occurred, most checkpoints had been removed and the monitoring and harassment of Tamils in their day-to-day lives have generally ceased. It also noted other sources of information which reported in January 2016 that “Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted along with their families”: DR [14].

17    The Authority then noted that, while the appellant claimed to have been harassed at checkpoints by the CID and robbed, he did not claim to have been questioned or harmed or accused in the past because of links with the LTTE. Nor did he claim that his wife or his parents had been questioned or harmed or accused in the past on suspicion of links with the LTTE and they continue to live in the appellant’s home area. In relation to the claimed incident concerning his father, the Authority noted that the appellant did not claim that this occurred because of any association on his part or that of his family, real or perceived, with the LTTE: DR[15].

18    The Authority noted that the UNHCR in a report dated December 2012 (2012 UNHCR Eligibility Guidelines) stated that “originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection” and the priority of the current government was to prevent resurgence of the LTTE and any moves towards Tamil separatism: DR[16]. At DR[17]-[19], the Authority noted the following country information:

17.    The UK Home Office noted that the Upper Tribunal in its 2013 decision identifies the following categories of ‘at risk’ persons: (i) individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka; (ii) Journalists… Or human rights activists, who, in either case have criticised the Sri Lankan government …; (iii) individuals who have given evidence in the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes …; and (iv) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant, individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the Sri Lankan authorities, in pursuance of such order or warrant.

18.    The UNHCR identifies the following cohorts of people who may be at risk of harm in Sri Lanka. (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activist; (iii) certain journalists and other media professionals; (iv) certain human right activists; (v) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.

19.    In relation to person suspected of links with the LTTE the UNHCR states that these may, depending on the individual circumstances of the case, include: 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combatants or “cadres”; 3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependant on or otherwise closely related to persons with the above profiles.

19    The Authority set out its findings concerning whether the appellant had a “well-founded fear of persecution” based on his links with the LTTE at DR[20] and [21] as follows:

20.    I find that the applicant does not fit the profile of persons identified by either the UNHCR or the UK Home Office as being potentially in need of international protection. I am satisfied that his role in selling food products to the LTTE from the local co-operative, occasionally giving them a lift on his motorcycle, and approximately three times driving with his cousin in his truck delivering goods for the LTTE occurred because he lived in an area under LTTE control. I am satisfied his activity in this regard is not indicative of a level of involvement which gives rise to a real chance of him being regarded as an LTTE supporter “involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE” or as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.

21.    After assessing all the evidence I am satisfied that the applicant does not face a real chance of serious harm in the future and Sri Lanka because of his links with the LTTE. His fears of persecution in this regard are not well-founded.

20    For completeness, set out below is the primary judge’s summary of the way in which the Authority dealt with the appellant’s claims to fear harm based on his Tamil ethnicity and harassment by the CID, paramilitaries and Sri Lankan authorities, as a failed asylum seeker who departed Sri Lanka illegally, on cumulative grounds and for complementary protection (footnotes removed):

20.    Regarding the applicant's Tamil ethnicity, the Authority found that, "as upsetting as they would be", the applicant's treatment at the hands of Sri Lankan authorities "did not involve significant physical ill-treatment or physical harassment, or significant economic hardship or affect his capacity to earn a livelihood or other treatment that may be regarded as serious harm".

21.    Furthermore, the Authority noted that "nothing further" had occurred to the applicant's family in the four years following the claimed kidnapping of the applicant's father in December 2012. The Authority also noted that country information suggested that President Sirisena's government, which had assumed power since the applicant departed Sri Lanka, had demonstrated a "more proactive approach to human rights and reconciliation than the previous government". Accordingly, the Authority did not accept that any fear of persecution on this basis was "well-founded".

22.    Regarding the applicant's status as an illegal departee, the Authority did not accept that the applicant had a "relatively high profile", had the profile of an "anti-government activist", a "Tamil separatist" or a "person with links to the LTTE", or was otherwise of adverse interest to the Sri Lankan authorities as a result of the matters set out above.

23.    Accordingly, the Authority relied upon country information to conclude that the most likely treatment was that the applicant would be processed in a "routine" manner, involving a period of detention whilst identity, character and security checks occur, charge under the Sri Lankan Immigrants and Emigrants Act 1949 (Immigrants and Emigrants Act), and sentence to payment of a fine.

24.    The Authority found that none of this treatment amounted to "serious harm" or "significant harm" as required by the Migration Act, and in any event, would be applied pursuant to a non-discriminatory law of general application, and as such, could not constitute "persecution" within the meaning of the Migration Act.

25.    On this basis, the Authority found that neither considered individually, nor cumulatively, did the applicant's claims demonstrate that there was a real chance that he would face serious harm if returned to Sri Lanka, and thus the applicant did not satisfy s.36(2)(a) of the Migration Act.

26.    Regarding the complementary protection assessment, the Authority relied upon its findings with respect to the refugee assessment to find that the applicant did not face a real chance of serious harm on any of the claimed bases.

27.    Furthermore, the Authority found that the applicant's likely treatment under the Immigrants and Emigrants Act, and/or his status as a "Tamil who is from an area previously under LTTE control and who sold food to the LTTE and provided them with very limited support" and "who was harassed by Sri Lankan authorities and paramilitaries and who departed Sri Lanka unlawfully" did not place him at a real risk of significant harm now or in the reasonably foreseeable future, if returned to Sri Lanka.

Judicial review application to Federal Circuit Court

21    The appellant was represented by counsel in the proceedings before the Federal Circuit Court.

22    In his reasons at J[29]-[30], the primary judge summarised the way the appellant’s grounds were presented as follows:

29.     … The applicant at trial sought to rely upon an amended application annexed to his submissions filed on 23 October 2018. The Minister opposed leave being granted, noting the very significant delay in amending the application, by reference to the procedural orders made in the matter. The Minister conceded, however, that the amendments made to Grounds 1 and 2 were of no great moment. The amended application introduced a new Ground 3 which was, however, not pressed. On that basis, I granted leave for the applicant to file and rely upon the amended application.

30.    Grounds 1 and 2 in the application as amended are:

1.    The Second respondent incorrectly or wrongly considered the real chance test and thereby committed a jurisdictional error. The Second Respondent in this context failed to address a question and issue.

Particulars

The Second respondent accepted that the applicant had a cousin who was involved with the LTTE as a truck driver for about eight years and who the applicant accompanied several times delivering goods for the LTTE. The second respondent also accepted that the applicant’s cousin had been detained by the authorities for at least eight years between about 2008 and 2016.

There is no consideration or finding by the Second respondent of the consequences that would occur if the authorities come to know these connections, in the near future in the context of risk profiles recognised in the UNHCR guide line. In the circumstances, the Second respondent failed to address, or properly address, the issue of whether the applicant, if required to return to Sri Lanka, faces a real chance of persecution as a result of his family link to his cousin.

2.    The Second Respondent committed jurisdictional error by failing to consider or [make] a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.

Particulars:

2.1    The Applicant made it clear, and the Second respondent accepted, that the authorities did not know his connection with his cousin who is still in detention for LTTE connection and his other associations with the LTTE. One reason for his fear is that he feared persecution if the authorities come to know in the future. The Second respondent failed to consider whether, if the applicant is required to return to Sri Lanka, the authorities would be aware of the connection between the applicant and his cousin, and face a real chance of persecution as a result of his family link to his cousin.

Submissions made by the appellant’s counsel to the primary judge

23    The primary judge noted (at J[33] and [41]) that counsel for the appellant dealt with the two grounds together and on the basis that the appellant claimed that he had a cousin who worked as a truck driver for the LTTE for eight years transporting goods, the appellant accompanied his cousin several times when delivering goods to the LTTE and, as at 2016, the cousin had been detained by the Sri Lankan authorities for eight years (that is, commencing in 2008) and he continues to be in detention.

24    The appellant’s written submissions in the Federal Circuit Court are not in evidence. The primary judge recorded oral submissions made by the appellant’s counsel at J[33]-[49], and a summary of those submissions is set out at [26]-[33] below.

25    The Authority accepted this part of the appellant’s claims at DR[10]-[11]. At DR[12], the Authority noted that the appellant stated that the Sri Lankan government does not know about his cousin or the support the appellant provided to the LTTE, and on a fair reading of the decision record, the Authority accepted this claim.

26    The Authority accepted country information that persons with family links to certain categories of LTTE members and supporters may face a risk of persecution, relying on DR[14], [17]-[19] as follows.

14.    … I note other sources of information which indicate that human rights violations continue to be perpetrated by the authorities against people with suspected links to the LTTE. For example, the International Truth and Justice Project reported in January 2016 that “Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted along with their families”.

    …

17.    The UK Home Office noted that the Upper Tribunal in its 2013 decision identified the following categories of ‘at risk’ persons: (i) individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to … a renewal of hostilities within Sri Lanka …

18.    The UNHCR identifies the following cohorts of people who may be at risk of harm in Sri Lanka. (i) persons suspected of certain links with the LTTE; (ii) …

19.    In relation to persons suspected of links with the LTTE, the UNHCR states that these may, depending on the individual circumstances of the case, include: (1) Persons who held senior positions with considerable authority in the LTTE civilian administration … (4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE; … (6) Persons with family links or who are … otherwise closely related to persons with the above profiles.”

27    The Authority then disposed of this part of the appellant’s claims at DR[20]-[21].

28    From the length of the cousin’s detention by the Sri Lankan authorities, it appears that he is not an ordinary LTTE supporter or member; it appears that those authorities had serious and continuing concerns about him. In light of the country information that the Authority accepted, “Persons with family links or who are … otherwise closely related to” specified categories of LTTE members and supporters, it was submitted that the Authority did not properly address the issue of whether the appellant faces a real chance of persecution as a result of his family link to his cousin if he returned to Sri Lanka in light of the Authority’s finding at DR[20].

29    The appellant’s counsel submitted to the primary judge that there are three problems with the Authority’s finding at DR[20]. First, the correct and fair reading of that finding is:

I am satisfied his activity in this regard is not indicative of a level of involvement which gives rise to a real chance of him being regarded:

i.    as an LTTE supporter “involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE” or

ii.    as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.

The finding focuses on the activity of the appellant, yet whether or not the appellant faces a real chance of persecution arising from his family link to his cousin turns principally on the nature and significance of the cousin’s involvement with the LTTE and the closeness of the connection between the appellant and the cousin.

30    Second, the nature and significance of the cousin’s involvement with the LTTE includes whether the cousin fits within a category recognised in the 2012 UNHCR Eligibility Guidelines “(4) Former LTTE supporters who may never have undergone military training but were involved in sheltering or transporting LTTE personnel the supply and transport of goods for the LTTE”: see DR[19]. The Authority did not address this issue in its reasons for decision. In light of the Authority’s statutory obligation to give reasons for is decision which “set out findings on material questions of fact and refer to the evidence or other material on which those findings are based” (see s 473EA of the Migration Act and s 25D of the Acts Interpretation Act 1901 (Cth)), the Court can conclude that the Authority overlooked the issue.

31    Third, the Authority relied significantly on the fact that the appellant “had never been questioned or charged in this regard in the past”. While this finding is correct, the Authority did not address the question of whether there was a real chance that the Sri Lankan authorities would, on or following the appellant’s return to Sri Lanka, become aware of the family link between the appellant and his cousin. Given the Authority’s findings at DR[33], [34] and [36] that “on return to Sri Lanka the [appellant] will be questioned at the airport and will undergo identification, character and security checks”, “on being returned to Sri Lanka the [appellant]will be held on remand for a number of hours whilst the identity, character and security checks are completed” and “the Sri Lankan authorities may assume that the [appellant] sought protection in Australia”, there is a real possibility that the Sri Lankan authorities will become aware of the family link between the appellant and his cousin during this process. It was submitted that the fact that the Authority did not expressly address this issue in its reasons for decision allows the Court to conclude that the Authority overlooked the issue.

32    In summary, the appellant contended that the Authority committed a jurisdictional error in dealing with, or failing to deal with, the issue of whether, if the appellant is required to return to Sri Lanka, he faces a real chance of persecution as a result of his family link to his cousin.

Submissions made by the Minister to the primary judge

33    The Minister’s written submissions filed in the proceedings in the Federal Circuit Court are not in evidence. The primary judge recorded the Minister’s submissions in relation to the proper application of the “real chance” test in ground 1 at J[50]-[68] and a summary of those submissions is set out at [35]-[38] below.

34    The appellant’s submissions proceed upon a misunderstanding of the Authority’s reasons. Properly understood, the Authority’s findings with respect to this claim did not depend upon the Sri Lankan authorities’ supposed lack of knowledge about the appellant’s connections with the LTTE. Instead, they rest upon findings that the appellant’s connection with the LTTE (both directly and through his cousin) was not such that it would prompt adverse action from the Sri Lankan authorities even if they were to learn of his previous activities and connection to his cousin.

35    At DR[6]-[7], the Authority noted that ss 5H(1) and 5J of the Migration Act required the appellant to demonstrate that he has a “well-founded fear of persecution” in the receiving country. Section 5J(1)(b) of the Migration Act requires, for a fear to be “well-founded”, that there be a “real chance” (being a “substantial, as distinct form a remote chance”) of that persecution occurring. Relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 294, determining whether a “real chance” of persecution exists involves “making findings as to primary facts, identifying the inferences which may properly be drawn from [them] and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned” to Sri Lanka.

36    This is precisely the process which the Authority adopted in this case.

(1)    It accepted that the appellant claimed that “his cousin was involved with the LTTE as a truck driver for approximately eight years and that he accompanied his cousin several times delivering meals and other goods” (at DR[10]).

(2)    Although expressing some doubt about the veracity of the claim that the appellant’s cousin remained in detention due to the assistance he provided to the LTTE, the Authority was “prepared to accept” this aspect of the appellant’s claim (at DR[11]).

(3)    Importantly, the Authority observed that the appellant “stated that the Sri Lankan government was not aware of his involvement with and the support he provided for the LTTE or that he had a cousin involved with the LTTE” (at DR[11]).

(4)    The Authority then considered (at DR[12]-[15]) that the appellant’s evidence did not suggest he or his family had come to the attention of the Sri Lankan authorities as a result of these activities, nor that any of the harassment which it accepted he had experienced was related to those activities Further, at DR[16]-[20] and [37], the Authority then considered whether the appellant’s involvement with the LTTE was such that the appellant was likely to become the subject of adverse attention from Sri Lankan authorities.

(5)    The Authority found (on the basis of country information) that this would not be the case as the appellant’s involvement with the LTTE appeared to be no more than ordinary in LTTE-controlled areas and thus not likely to attract the authorities’ attention. In support of this finding, country information before the Authority did not indicate that any LTTE connection would suffice to place a person at risk of harm from Sri Lankan authorities. Instead, the country information identified a range of categories of people who may be considered to be “at risk” if they return to Sri Lanka. The Authority (at DR [20]) considered whether the appellant met any of these prescribed categories and found that the appellant “does not fit the profile of persons identified by either the UNHCR or the UK Home Office as potentially being in need of international protection”. Further, at DR [20], and by explicit reference to the 2012 UNHCR Guidelines, the Authority continues to find that the appellant’s past connection with the LTTE (both individually, and through his cousin) was not indicative of a level of involvement which gives rise to a real chance of him being regarded as an LTTE supporter “involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE” or a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past.

(6)    Contrary to the appellant’s submissions (set out at [30] above), the Authority’s reasons directly addressed the nature and significance of the cousin’s involvement with the LTTE and the closeness of the connection between the appellant and his cousin. This did not require the Authority to assess the risk of harm the appellant’s cousin might face and/or his cousin’s position in light of the country information before it.

(7)    The Authority’s reasoning was an entirely proper application of the “real risk” test, and this is to sufficient to dispose of the ground, as the question of whether established claims are sufficiently serious as to amount to persecution is a question of fact and degree to be addressed by the Authority, and not by the Court.

(8)    However, it should also be noted that nothing in the evidence before the Authority indicated that it was likely that the Sri Lankan authorities would come to know of the appellant’s LTTE association, even in the course of conducting its “identification, character and security checks” on his return. In circumstances where the Authority’s findings regarding the appellant’s profile were expressed unequivocally and based on clear evidence, it did not fall into error by choosing not to undertake a “counter-factual” analysis and consider whether the appellant would face a real risk of harm if the Sri Lankan authorities learned of the appellant’s LTTE connections. On the evidence before the Authority, any such consideration would have amounted to “conjecture”, “surmise” or “speculation”, none of which can sustain a “well-founded” fear of persecution: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 (MIMEA v Guo) at 572 and 575.

37    In relation to the second ground, failure to consider an “integer” of a claim, the primary judge summarised the Minister’s submissions at J[69]-[72] as follows:

(1)    The Minister relied on the submissions made in relation to the first ground.

(2)    The Authority expressly noted the appellant’s claims that the Sri Lankan authorities were “not aware” and “did not know” of the appellant’s connections to his cousin and to the LTTE.

(3)    The Minister asserted that the Authority found that the appellant’s claimed connections to the LTTE, individually and through his cousin, did not rise to a level such that the appellant would face a risk of harm even if the Sri Lankan authorities came to know of their full extent. In so doing, the Authority did not fail to consider any claim “squarely arising” on the material before it but instead disposed of that claim on a basis which simply did not depend upon the Sri Lankan authorities’ supposed lack of knowledge about the appellant’s connections.

The primary judge’s resolution of the judicial review application

38    The primary judge found that the Authority did not fall into jurisdictional error in the manner claimed. His Honour found that the Authority recognised the appellant’s claim in relation to his cousin at DR[5] (third dot point). It recognised the claim as relating to the appellant’s risk profile concerning links with the LTTE at DR[10]. The Authority recognised (at DR[11]) that the appellant’s cousin had been in detention for about eight years because of his work with the LTTE and recognised that the cousin was a maternal cousin of the appellant. His Honour then noted that the cousin was never named: J[73].

39    The primary judge found that the Authority also recognised, at DR[12], that the appellant asserted that the Sri Lankan government does not know about any links between him and his cousin. His Honour set out DR[12] in full: J[74].

40    The primary judge found that, next, the Authority recognised from country information at DR[18] and [19] that persons with family links or who are dependent on or otherwise closely related to persons with a substantial risk profile may themselves be at risk: J[75].

41    The primary judge then found that the “Tribunal’s” [sic Authority] reasoning in relation to the appellant’s claim concerning his cousin is set out at DR[20]: J[76]. DR[20] is set out at [20] above.

42    His Honour found (at J[77]) that the Authority was entitled to conclude, on the basis of the information before it, that the appellant did not face a real chance or risk of serious or significant harm because of his connection with his cousin. The primary judge said:

First, there was nothing in the applicant’s previous activities that exposed him to a real chance or risk of harm. Secondly, the familial relationship with the appellant’s cousin was not known to the Sri Lankan authorities and nothing had been put to the Authority to indicate that the link would become known. Importantly, the cousin was never named. The fact that the cousin is a maternal cousin might suggest that a familial link was not obvious.

43    The primary judge found that the Authority did not misconstrue the real chance test or overlook any element or integer of the appellant’s claims, saying that the Authority recognised and considered the claim concerning the appellant’s cousin and it was not satisfied that, either on the basis of the family link itself, or the former activities of the appellant, a real chance or real risk of harm arose: see J[78]. His Honour found that, in this regard, it was an open question whether the appellant could be said to be “closely related” to his cousin, noting that the expression “cousin” is an elastic term and it encompasses not only a child of a sibling of one’s parent but also more distant relationships and the appellant never explained to the Authority precisely what the relationship was, except that it was on his mother’s side: see J[79].

44    His Honour found (at J[80]) that the Authority was entitled to conclude, as it did at DR[21], that the appellant’s fears were not well founded.

The appeal

45    By notice of appeal filed on 4 January 2019, the appellant appeals the judgment of the primary judge. The notice of appeal repeats verbatim the two grounds of judicial review pleaded in the Federal Circuit Court save that:

(1)    The first ground is followed by the words “His Honour erred in holding that the Authority did not misconstrue the real chance test or overlook any element or integer of the applicant's claim”.

(2)    The second ground is followed by the words “His Honour erred in holding that there is no jurisdictional error. His Honour erred in holding that the Authority recognised and considered the claim concerning the applicant's cousin and was not satisfied that, either on the basis of the family link itself, or the former activities of the applicant, a real chance or real risk of harm arose”.

46    The Court was assisted by an interpreter at the hearing.

47    The appellant was not legally represented and he did not provide written submissions. The oral submissions made by the appellant at the hearing were directed to a number of factual issues relevant to his claims to protection; some submissions addressed factual matters which arise out of the primary judge’s reasons. The appellant submitted that:

(1)    He “very clearly” indicated the name of his cousin and the relationship between them. He told the delegate and the Authority that his cousin is his father’s sister’s son. I infer from this he is disputing the Authority’s reference (at DR[11]) to the appellant’s cousin as being his “maternal cousin” and to the matters raised by the primary judge at J[79].

(2)    His cousin remains in detention. He said that he is told that if he returns to Sri Lanka he would be taken into jail instead of his cousin.

(3)    His father was abducted.

(4)    While the appellant was working in the cooperative shop he provided food items which were taken by his cousin by truck to the LTTE. He attended martyrs’ day festivals with his cousin. If he is returned he will face serious problems.

48    The Minister submitted that the appellant’s grounds do not meaningfully engage with the reasons given by the primary judge and for that reason alone, the appeal should be dismissed. The Minister’s other written and oral submissions largely replicate the submissions that Mr Moss made as the Minister’s representative in the Federal Circuit Court. In relation to matters raised in oral submissions by the appellant, Mr Moss submitted that:

(1)    The name of the appellant’s cousin does not appear in the appeal book. There is no transcript of the proceedings before the delegate in evidence. The Authority’s finding suggests that the cousin was not identified, but the lack of a name emerged for the first time in the primary judge’s reasons. It was not addressed in the appellant’s pleading.

(2)    There is no evidence before the Court to contradict the Authority’s finding at DR[11] in which the reference to the cousin as a “maternal cousin” is made. But in any event, nothing turns on the descriptor and any error (if the cousin is in fact a “paternal cousin”) would be an error within jurisdiction.

(3)    The degree of the relationship between the appellant and his cousin is not explored in the delegate’s decision record or the Authority’s. The issue of the range of relationships which might be encompassed in the term “cousin” was another issue that emerged for the first time in the primary judge’s reasons.

(4)    The appellant’s reference to his having attended “martyrs’ day” festivals with his cousin is a matter which arose for the first time at the hearing of the appeal. It therefore cannot identify error by the Authority or the primary judge.

49    In reply, the appellant reiterated factual claims concerning the abduction of his father and a robbery at his home which he said resulted in him taking his family to live at a town 60 kilometres away. He also repeated the claim that his cousin remains in detention but if the appellant returns to Sri Lanka, his cousin will be released and he will be put in jail instead.

Consideration

50    The appellant’s grounds do not meaningfully engage with the reasons given by the primary judge. In this respect, as said by Derrington J in DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21], it is important to recognise that an appeal to this Court concerns the correction of error by a court below. An appeal court is not a forum in which a party may reargue the case agitated for below in the hope of convincing a judge to take a different view of the evidence. Moreover, absent demonstrated error, it is not a forum to engage in a factual re-hearing of the matter before the administrative decision-maker: SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 per Flick J at [6]-[8] and CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 per Gilmour J at [13]-[14].

51    Having said that, the appellant appeared in person and participated in the hearing of the appeal with the assistance of an interpreter. His oral submissions addressed some factual matters arising from the primary judge’s reasons for judgment. On the basis of fulfilment of the Minister’s obligations as a model litigant, his representative made submissions in support of the correctness of the primary judge’s decision, reiterating submissions made to the primary judge. It is therefore appropriate to address those submissions briefly.

52    It is plain that the primary judge did not accept the Minister’s submission that, properly read, the Authority’s findings did not depend upon the Sri Lankan authorities’ supposed lack of knowledge of the appellant’s previous activities or his connection with his cousin. At J[77], the primary judge found that “… the familial relationship with the appellant’s cousin was not known to the Sri Lankan authorities and nothing had been put to the Authority to indicate that the link would become known …” (see [43] above). It is also clear from this passage of J[77] and J[78] that the primary judge did not accept the reading of DR[20] for which the appellant’s counsel contended, which is recorded at J[41] (see [30] above) or the other arguments summarised at [31] and [32] above. In my view, the primary judge was correct in both cases.

53    The Authority’s process of reasoning was:

(1)    It recognised and accepted the appellant’s claim that his cousin was involved with the LTTE as a truck driver for approximately eight years, that he accompanied his cousin several times delivering meals and other goods to the LTTE and that he was a branch manager at the local cooperative where he sold rice and other basic foods to the LTTE and he occasionally transported them on his motorcycle (see DR[5] and [10]);

(2)    With some hesitation, the Authority was prepared to accept that the appellant’s cousin had been in detention for eight years up to 2016 because he drove a truck for the LTTE (see DR[11]);

(3)    In assessing the chance of the appellant facing harm in the future because of his and his cousin’s links with and support provided to the LTTE, the Authority noted that the appellant had stated that the Sri Lankan government was not aware of his involvement with and the support he provided for the LTTE or that he had a cousin involved with the LTTE (see DR[11]);

(4)    The Authority noted (at DR[12]) that the appellant did not claim that he had ever been questioned or interrogated about his cousin or his links with the LTTE. The Authority again noted that the appellant stated that the Sri Lankan government did not know about his cousin, that it was not aware of the support he provided to the LTTE and that the appellant had not been detained under the Emergency Regulations or the Prevention of Terrorism Act 1978 (Sri Lanka). All of those factors support the contention that the Sri Lankan authorities are not aware of the appellant’s link to his cousin;

(5)    The Authority again noted that the appellant did not claim to have been questioned or harmed or accused in the past because of links with the LTTE. Nor did he claim that his wife or his parents had been questioned or harmed or accused in the past on suspicion of links with the LTTE and they continue to live in the appellant’s home area. In relation to the claimed incident concerning his father, the Authority noted that the appellant did not claim that this occurred because of any association on his part or that of his family, real or perceived, with the LTTE (see DR[15]); and

(6)    With a starting point that the 2012 UNHCR Eligibility Guidelines stated that “originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection” and having noted that the priority of the current (Sirisena) government was to prevent resurgence of the LTTE and any moves towards Tamil separatism, the Authority considered the country information from the UNHCR and the UK Home Office which indicated those categories of people who were “at risk”. Those “at risk” included (4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE; … (6) Persons with family links or who are … otherwise closely related to persons with the above profiles. (see DR[16]-[19]).

54    It is against this reasoning that the Authority made the findings (at DR[20]) that the appellant does not fit the profile of persons identified by either the UNHCR or the UK Home Office as being potentially in need of international protection and that the Authority was satisfied that “his activity in this regard is not indicative of a level of involvement which gives rise to a real chance of him being regarded as an LTTE supporter … or as a person with family links to an LTTE supporter, particularly as he has never been questioned or charged in this regard in the past”. The submissions put by the appellant’s counsel to the primary judge recorded at [30]-[32] above are therefore properly rejected.

55    While it is true that the last sentence of DR[20] commences with reference to the appellant’s activity, reading the Authority’s decision record as required (see Wu Shan Liang at 271-272), the Authority did consider the appellant’s claim that he was at risk of harm due to his cousin’s involvement with the LTTE and on the basis that the Authority accepted that his cousin had been detained eight years previously because of those activities and remained in detention in 2016. The reference in the last sentence of DR[20] to the fact that the appellant had never been arrested or charged is a reference back to the Authority’s prior reasoning based on the appellant’s evidence that the Sri Lankan authorities did not know of his activities or his link to his cousin and the fact that those activities and link had had no consequences for the appellant before he left Sri Lanka. The Authority’s conclusion that the appellant does not fit the profile of a person “at risk” by reference to the past was arrived at by a rational process of reasoning.

56    In assessing the risk to the appellant in the foreseeable future if he were returned to Sri Lanka, the Authority was entitled to take into account that it was his evidence that the Sri Lankan authorities did not know of his relationship with his cousin and that he did not claim ever to have been questioned or detained or suffered any other consequences as a result. In many (if not most) cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events: see MIMEA v Guo at 575.

57    As noted by the primary judge, the appellant had not put to the Authority anything which indicated how the Sri Lankan authorities would come to know of the appellant’s past activities or his link to his cousin. The Authority considered in detail what would happen to the appellant upon his return to Sri Lanka as a failed asylum seeker who departed that country illegally. It considered country information from DFAT and the UNHCR (at DR[33]). Based on that information, the Authority was satisfied that the treatment to which the appellant may be subject would not amount to serious or significant harm, having taken into account that there was no evidence that the appellant will be unable to pay a fine or bail imposed in relation to illegal departure and that there was no evidence to indicate that he had engaged in people smuggling or any other crime. At DR[37] the Authority expressly found that it was satisfied that the appellant would not have the profile of an anti-government activist or a Tamil separatist on the basis that the appellant is not perceived by Sri Lankan authorities as a person with links to the LTTE and that the appellant would undergo routine processing.

58    The argument made by the appellant’s counsel to the primary judge amounted to a claim that the Authority should have considered “what if” the Sri Lankan authorities came to know of his link to his cousin. Having regard to the clear evidence that the Sri Lankan government was not aware of the appellant’s link to his cousin, which was supported by the fact that neither the appellant nor his wife or parents had ever been questioned on that basis, the Authority did not fall into error by choosing not to undertake a “counter-factual” analysis for the reasons given by the High Court in MIMEA v Guo at 572 and 575.

59    Accordingly, the primary judge did not err in finding that the Authority did not misconstrue the real chance test or overlook any integer of the appellant’s claims.

60    It is necessary to address comments made by his Honour which placed emphasis (at J[77]) on the Authority’s finding that the appellant’s cousin was a maternal cousin and that the cousin was never named and at J[79] in relation to the “degree” in which the cousins were related. The Minister’s representative submitted that these are issues which were not raised in argument before the primary judge. The appellant’s cousin is simply referred to as “his cousin” in his claims statement and in the delegate’s decision record; the record of his entry interview does not mention his cousin. The appellant gave no evidence about the nature of his relationship with his cousin, save that he rode with him on a few occasions in delivering food to the LTTE, the Sri Lankan authorities did not know of his link to his cousin and he told the delegate that his cousin was in detention and had been for eight years as at 2016. The Authority conducted its review on the papers, without receiving further submissions from the appellant or interviewing him. If the Authority erred in referring to the appellant’s cousin as a “maternal cousin”, that is not an error which goes to jurisdiction. It is difficult to see how the fact that the cousin is the son of his father’s sister instead of being his “maternal cousin” (as the appellant claimed to the Court on appeal) can make a difference in circumstance.

61    As to the other matters raised by the appellant at the hearing, all go to factual issues which were before the Authority, save that it appears that the claims that he attended martyrs’ day festivals with his cousin and that he will be required to replace his cousin in jail if he returns to Sri Lanka appear to be new. On any basis, those matters cannot disclose appellable error by the primary judge. Those matters go to the merit of the Authority’s decision and are not indicative of jurisdictional error by it since they do not appear to be claims made in the materials presented to the Authority for its review.

Conclusion

62    The appeal will be dismissed with costs.

Associate:

Dated:    3 June 2019