FEDERAL COURT OF AUSTRALIA

CUI16 v Minister for Home Affairs [2019] FCA 927

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority: CUI16 v Minister for Immigration and Citizenship [2018] FCCA 2338.

2    The Authority affirmed the Minister's delegate's decision to refuse to grant the appellant a safe haven enterprise protection visa.

3    At the heart of this appeal is the appellant's contention that the Authority failed to consider his claim that he feared persecution on the basis that he was a young Tamil male from the North of Sri Lanka.

Background

4    The appellant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia on 12 August 2012 at the age of 18 (born 1993). He initially applied for a permanent protection visa, but in 2015 was invited to apply for a safe haven enterprise protection visa. Accordingly he made two statements of his claims for protection, one for each visa application. According to the appellant's counsel, both statements were before the delegate.

5    On 26 July 2016 a delegate of the Minister refused to grant the visa.

6    The decision was referred to the Authority, which affirmed the decision not to grant the visa.

7    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision, and the primary judge dismissed the application for review.

8    The appellant now appeals from the judgment of the Federal Circuit Court.

The appellant's claims before the Authority

Summary of claim

9    The Authority summarised the appellant's protection claim at [5] of its reasons as follows:

•    He fears harm from the Criminal Investigation Department (CID) of the Sri Lanka Police Service. They suspect that as a young Tamil man, the applicant will join or build a new LTTE.

•    In April or May 2011, CID officers visited the applicant's home and questioned the applicant, his parents and brothers about whether they were part of the LTTE. Following this the CID officers took the applicant to their office where he was detained in a small room and beaten with a stick while being questioned about the LTTE. He was released the following morning after signing a letter stating that he was not allowed to leave the country and was placed on reporting conditions.

•    Due to their Tamil ethnicity, several of his friends have been detained by the CID, sometimes for up to two years and tortured on suspicion of LTTE links.

•    Because he was afraid of being detained by the CID, the applicant only reported three times and then ceased. When he stopped reporting the CID came to his house four or five times before he decided to leave Sri Lanka. On the first occasion the CID visited his house his mother was detained for two nights.

•    Because the CID visits were becoming more frequent, the applicant decided to leave Sri Lanka. The frequency of the CID visits has escalated since the applicant arrived in Australia. The CID continues to visit the applicant's home three or four times a month looking for him and go to his sisters' houses in other towns searching for him.

10    The appellant does not take issue with that summary.

11    Further to the summary, it is to be noted that in the appellant's second statement he repeatedly referred to being from the northern province of Sri Lanka. He also referred on a number of occasions to being a Tamil, a matter not in issue.

12    The appellant set out in his statement his alleged confrontation with the Criminal Investigation Department (CID), being the occasion when they came to his house and then took him to their office, as summarised by the Authority. The appellant then summarised his claim as follows:

In summary, I fear harm including abduction, torture and murder at the hand of the CID including on the basis of my Tamil ethnicity. I further fear harm in other areas of Sri Lanka - including abduction, torture and murder at the hands of the CID by virtue of my ethnicity, and my imputed political opinion. The authorities in my country think that all young Tamil men are a danger because they could join and rebuild the LTTE. I have personally been assaulted and pursued by my feared persecutors. I cannot rely on the protection of the Sri Lankan state and cannot safely relocate anywhere else in Sri Lanka. There is no guarantee for my life.

(emphasis added)

13    Ground 1 (discussed fully below) contends that the Authority failed to consider cumulatively his claim to fear persecution because he was a 'young Tamil male from the North of Sri Lanka' and that it only looked at the integers of his claim separately. During the hearing, counsel for the appellant submitted this claim was made by way of the summary included above. It should be noted that the appellant himself does not use the phrase 'young Tamil male from the North of Sri Lanka' in his statement. Rather, as I have noted, he refers in various parts of his statements to being from the north and to being of Tamil ethnicity, and it appears that his self-inclusion in the category of 'young Tamil males' is to be inferred from the summary recorded at [12] above.

Report before the Authority

14    The appellant attached to his second visa application a copy of a report prepared by the United Kingdom medical foundation for the care of victims of torture known as 'Freedom from Torture'. The report was published in August 2015 and is entitled 'Tainted Peace: Torture in Sri Lanka since May 2009' (Tainted Peace Report). The content of the report indicates that it is based on a study of 148 cases of torture perpetrated since the end of the civil war and during the period May 2009 to September 2013 as referred to in medico-legal reports (although it states that other cases have been referred to it relating to 2014 and 2015). The appellant relies in particular on a passage from the report that identified the profile of those 148 torture survivors as follows:

1.1    Age and sex

Of the 148 MLRs [medico-legal reports] reviewed 125 were for men (94%) and 23 were for women (16%). The majority of men were aged 26-40 (98 people), though there were a number of younger men, aged 18-25 (35 people). A smaller number of men and women were aged 41-60 (14 people) and one man was aged 60+.

1.2    Ethnicity and religion

The overwhelming majority of the 148 people were of Tamil ethnicity; 139 people and 94% of all cases. Six people were of Sinhalese ethnicity and three described themselves as having mixed ethnicity.

…

1.3    Association with LTTE

The profile factor - other than ethnicity - that was reported by the vast majority of people to have led to detention and torture by state authorities was an actual or perceived association with the LTTE. Of the 148 people, 142 described an association with the LTTE at some level and/or said that they had been associated with the LTTE by the Sri Lankan authorities in some way (96% of all cases). The LTTE association related directly to themselves or to members of their family, or to both (see Figures 1 and 2). For some people the association was real and for others it was wrongly imputed to them by the authorities. Either way, this was the key factor that reportedly led to their eventual detention on one occasion or more.

…

These cases demonstrate that ordinary people of Tamil ethnicity with links to the LTTE - even where these links were minimal or at a relatively low level - as well as those for whom such links were merely suspected or were completely false, were detained and tortured and that the detention of people with these profiles has continued well into the post-conflict period.

The Authority's reasons

15    The appellant made no submissions to the Authority and did not provide it with any additional information.

16    The Authority summarised the appellant's claims, as included above.

17    The Authority outlined the requirements of a 'well-founded fear of persecution' under s 5J of the Migration Act 1958 (Cth) (Act).

18    The Authority accepted that the appellant originates from an area previously controlled by the Liberation Tigers of Tamil Eelam (LTTE). However, it did not accept as plausible the appellant's claims that he was detained and assaulted by the CID, that his mother was detained by the CID, that his family has been threatened by the CID or that CID officers are still searching for him. It did not consider that on the available evidence and taking into account country information, the applicant would be considered to have any actual or perceived links to the LTTE on return to Sri Lanka. The Authority wrote:

9.    I accept that the applicant originates from an area previously controlled by the LTTE, however I do not accept as credible his claim that simply because of his Tamil ethnicity, Sri Lankan authorities will impute him as having LTTE links or sympathies. At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered around three quarters of what are now the Northern and Eastern provinces of Sri Lanka. As a result, all persons residing in these areas necessarily encountered the organisation and its civilian administration in their daily lives. In its most recent guidelines, the United Nations High Commissioner for Refugees (UNHCR) states that residing in an area previously controlled by the LITE does not of itself result in a need for international protection. However, certain links that go beyond prior residency in an LTTE-controlled area expose individuals to treatment which may give rise to a need for protection. While not exhaustive, the current UNHCR guidelines state that people with the following actual or perceived profiles may be risk:

•    Persons who held senior positions with considerable authority in the LTTE civilian administration in areas of the northern and eastern provinces.

•    Former LTTE combatants or 'cadres'.

•    Former LTTE combatants or 'cadres' who, due to injury or other reasons, were employed by the LTTE in functions within the administration, intelligence, 'computer branch', or media (newspaper or radio).

•    Former LTTE supporters who were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods.

•    LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and support to the LTTE; and persons with family links, or who are dependent upon, or otherwise closely related to persons with the above profiles.

10.    DFAT assesses the Sri Lankan authorities remain sensitive to the re-emergence of the LTTE and do monitor former members and supporters, including on stop and watch lists. Overall, DFAT advises that former LTTE leadership are at the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed combat or civilian roles. Low profile former members of the LTTE would be likely to be detained and sent to rehabilitation centres. Both high and low profile members would be monitored following release; as would family members of former LTTE members (especially the high ranking members).

11.    The applicant has not claimed to have engaged in any Tamil separatist activity in Sri Lanka and the available evidence gives no indication that he has any real or imputed links to the LTTE to the extent that his profile would fall within any of the categories of persons of interest described above. While many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government, this occurred in the context of the protracted conflict with the LTTE which ceased in 2009 with the Sri Lankan government's announcement of military victory over the LTTE and complete territorial control over Sri Lanka. Given his lack of profile apart from his being a Tamil from an area previously controlled by the LTTE, I do not accept as plausible the applicant's claims that in 2011 he was detained and assaulted by the CID, that his mother was detained by the CID, that his family has been threatened by the CID or that CID officers are still searching for him.

12.    I do not accept as credible the applicant's claims that due to their Tamil ethnicity, several of his friends have been detained by the CID and tortured on suspicion of LTTE links. The applicant has not claimed that any of these friends supported or engaged in Tamil separatist activity or provided any information to indicate they had any real or imputed links to the LTTE to the extent that they would fall within any of the categories of interest outlined above.

13.    In the time that the applicant has been outside Sri Lanka there is no indication that he has engaged in separatist activity, advocated for Tamil separatism, or would be perceived as having done so. On the available evidence and taking into account country information above, the applicant will not be considered to have any actual or perceived links to the LTTE on return to Sri Lanka. As a result I am satisfied that the applicant will not face a real chance of persecution from Sri Lankan authorities, including the CID, on return to Sri Lanka.

(footnotes omitted)

19    The Authority then considered whether the appellant faced harm on the basis of his Tamil race. It was not satisfied that the appellant faced harm due to his Tamil race having regard to country information indicating that the overall situation for Tamils in Sri Lanka has improved since the end of the civil conflict in 2009. It found that the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.

20    The Authority found that because the appellant had departed Sri Lanka illegally, he would likely face a fine and short period of detention upon return, as country information indicated that such measures were imposed by the government by legislation. However, the Authority did not consider this to constitute 'serious harm' or 'persecution', and considered that these penalties were not applied in a discriminatory manner.

21    The Authority concluded that the appellant did not meet the definition of refugee under s 5H(1) and that therefore he failed to meet s 36(2)(a) of the Act. For similar reasons, it found that he did not face significant harm upon return to Sri Lanka and consequently did not meet the criterion in s 36(2)(aa) of the Act.

22    I note that the country information to which the Authority had particular regard (as referred to on numerous occasions in its footnotes) was the 'DFAT Country information Report - Sri Lanka' of 18 December 2015. It does not expressly refer to the Tainted Peace Report.

Before the Federal Circuit Court

23    The appellant raised four grounds of appeal before the Federal Circuit Court:

(1)    The Authority erred in that it failed to consider the case on the basis that the appellant claimed that he was a young Tamil from the north of Sri Lanka, only considering the factor of his Tamil ethnicity.

(2)    The Authority erred in taking into account an irrelevant consideration, in that it appeared to require that the appellant have participated in LTTE activities to be persecuted, and this requirement was an irrelevant consideration.

(3)    The Authority failed to consider a relevant issue, being the warning by the Sri Lankan army that he not leave the country and report regularly.

(4)    The Authority's decision was unreasonable, in that it disbelieved the delegate's finding that the appellant feared harm upon return to Sri Lanka because of an imputed affiliation with the LTTE without calling the appellant for a hearing.

24    As to the first ground, the primary judge noted that the Authority's reasons are not to be read with an eye keenly attuned to error, and that the Authority's reasons expressly refer to the applicant being a young Tamil man and coming from an area previously controlled by the LTTE. He found that the claim of being a young Tamil male from the north of Sri Lanka was subsumed by the finding that the appellant did not have any imputed LTTE link.

25    As to the second ground, the primary judge rejected the assertion that the Authority had imposed such a requirement or adopted an erroneous assumption.

26    As to the third ground, the primary judge found that the Authority's reasons expressly rejected the appellant's claims as to what occurred in 2011 (conduct that included the alleged warning), and this finding was open to it. Accordingly, there was no failure to consider a relevant issue.

27    As to the fourth ground, the primary judge found that the Authority gave the applicant the opportunity to present new information prior to reaching its decision. The Authority was not bound by the delegate's findings. In any event, although the delegate found that the appellant feared harm, the delegate found that this fear was not well-founded.

28    Accordingly, the primary judge dismissed the grounds raised by the appellant.

Grounds of appeal before this Court

29    In his Notice of Appeal, the appellant raised one ground of appeal, which was the same as the first ground raised before the primary judge. During oral submissions, the appellant sought leave to rely additionally on the other three grounds raised before the primary judge. Counsel for the Minister did not oppose the granting of leave, and so I granted leave and accorded the Minister the opportunity to file supplementary submissions to respond to those grounds, if he wished to do so. The Minister filed short supplementary submissions.

30    Grounds 1 to 4 of this appeal are therefore in effect identical to the four grounds of review before the primary judge, save that the complaint before this Court is that the primary judge erred by failing to uphold each of those grounds of review.

Consideration

Ground 1

31    The appellant submits that the Authority erred by considering each facet of his claim in isolation, rather than as a whole, and thereby failed to consider the appellant's claim. He submits that there was evidence before the Authority that shows that young Tamil males were disproportionately targeted by Sri Lankan authorities and that had the claim been considered as a whole, the outcome may have been different as the Authority may have accepted that the appellant was imputed with an LTTE profile.

32    The following principles are relevant:

(1)    Nothing in the statutory constraints to be found within Part 7AA of the Act affects the Authority's duty to consider claims and issues arising from material before it as imposed by the existing case law on the topic: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18].

(2)    A body such as the Authority must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [79]. If a Tribunal fails to make a finding on a 'substantial, clearly articulated argument relying upon established facts', that can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] (Gummow and Callinan JJ), [95] (Hayne J).

(3)    Whilst it may be convenient for a tribunal to deal separately with each element of a claim, it must additionally address all of the essential elements of the claim cumulatively: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [7] (Merkel J). It is an error for a tribunal to address claims in a 'piecemeal fashion': MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 at [74].

(4)    A decision-maker may be aware of information without paying any attention to it or giving it any consideration, in which case the requirement of consideration will not be satisfied: NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [212], citing Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [58]. In considering whether or not a claim or part of a claim has been taken into account, it is the reality, and not the appearances, which matters: Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 595 (Kirby J).

33    In this case, I am satisfied that the Tribunal understood and had proper regard to the claim.

34    Importantly, it was the Authority itself that summarised the claim as being one based on the appellant himself being a 'young Tamil man'. That indicates some thought was given to the nature of the claim as summarised by the appellant.

35    The Authority accepted (at [9]) that the appellant is a Tamil from an area once controlled by the LTTE. It noted improvement in the position for Tamils, particularly in the north and east, since the end of the protracted conflict with the LTTE in 2009 (at [11]). It acknowledged that whilst for most persons prior residency in such an area will not give rise to a need for protection, it was also relevant to take into account other links. In other words, being a Tamil from northern Sri Lanka of itself would not justify protection. However, the Tribunal then looked at other factors as identified in the UNHCR guidelines that may also be relevant to that assessment. The Authority considered those factors. In particular it considered whether he might have any real or imputed links to the LTTE such that his profile might fall within those categories (at [11]). Such reasoning discloses a consideration of factors that considered cumulatively may affect his profile. The appellant accepted in his written submissions that the Authority understood that he was young. The fact that his youth is not expressly referred to apart from in the summary of his claim does not persuade me that it was a factor that was overlooked, in circumstances where the Authority has clearly analysed his summary in order to determine that his youth is part of his claim.

36    There was no recitation in the reasons of the particular phrase referred to in ground 1, but that is not to the point. That phrase was not utilised by the appellant in his claim. It is the substance that matters. In this case, I am satisfied that the Authority as a matter of substance considered the appellant's claim. I note the Authority states that it has had regard to the appellant's claims individually and cumulatively: I do not place any particular store in that statement and instead have examined the reasoning process disclosed.

37    I have not ignored the statement in [9] of the reasons that the Authority did not accept as credible the appellant's claim that 'simply because of his Tamil ethnicity' he would be imputed as having LTTE links or sympathies. Read as a whole, the reasons clearly do not address the claim on the singular basis of ethnicity and involve a more comprehensive reasoning pathway, as discussed at [35] above. To find otherwise would reflect an eye too keenly attuned to error, and an artificially strict parsing of the Authority's reasons.

38    Finally, the fact that the Authority did not refer to the Tainted Peace Report does not assist the appellant in circumstances where the Authority was entitled to and did have regard to more recent relevant country information by way of the 2015 DFAT report. The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]; SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652 at [20]. Having had regard to that country information, the Authority was entitled to reach the conclusion that the critical factor giving rise to a risk of harm was being imputed with an LTTE connection due to past and ongoing conduct.

39    In any event, the Tainted Peace Report does not appear to reflect the statement of counsel for the appellant that it provides evidence that the appellant would be imputed with an LTTE profile due to his age, sex, ethnicity and location even when he had not engaged in any separatist activity. Importantly, the profile factor reported by the vast majority of victims was an actual or perceived LTTE profile on the basis of personal or family association with the LTTE - a matter expressly addressed by the Authority with respect to the appellant, and dismissed (at [13]).

40    For the above reasons, I would dismiss ground 1.

Ground 2

41    The appellant submits that a fair reading of the Authority's submissions reveals that the Authority thought it necessary that the appellant have been involved in LTTE-related conduct in order to be persecuted.

42    The appellant relies on the decision in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28. In that case, it was held that the Refugee Review Tribunal erred in finding, against an abundance of credible material, that mistreatment faced by young Tamil males was a result of a law of uniform application aimed at combatting LTTE terrorism, rather than being directed in a discriminatory way towards any particular group such as young Tamil males.

43    Paramananthan is factually distinct from the present case. First, in that case the Tribunal accepted that the targeting of young Tamil men from northern Sri Lanka formed part of the procedures adopted by Sri Lankan authorities. Such a finding does not assist in this case where the Authority (many years later) made a different finding that there are no official policies or laws that discriminate on the basis of ethnicity or language. Second, the Tribunal's decision in Paramananthan was contrary to an abundance of credible material indicating that the Sri Lankan authorities persecuted young Tamil males. Such material is absent here. Third, it should be noted that more than twenty years have passed since the determination on Paramananthan, and the Authority noted the improvement in conditions for Tamils in Sri Lanka since that time.

44    In my view, it is clear on the basis of the reasons that the Authority did not assume or impose a requirement of actual as against perceived links to the LTTE. Rather, having expressly referred to country information, the Authority referred to risk arising from both real and imputed links to the LTTE which was consistent with the country information before it. The Authority did not accept that the appellant had such links, whether real or imputed, having regard to the information referred to it and other country information. The reasons are littered with references to whether or not there were real or imputed LTTE links.

45    I would dismiss ground 2.

Ground 3

46    The appellant submits that the Authority failed to consider a warning by the Sri Lankan Army, given to him whilst he was detained by CID in April or May 2011, which required him to comply with reporting conditions. The appellant submits that it is clear, albeit implicit, that the appellant might face harm upon return to Sri Lanka because he failed to comply with those conditions when he fled to Australia. The appellant submits that this claim was not referred to, or addressed, by the Authority.

47    At [11] of its reasons, the Authority expressly rejected the appellant's claims that he was detained or assaulted by CID in 2011. Implicit in a finding that the appellant was not detained is a rejection of the claim that the appellant was forced to sign any document whilst detained.

48    The factual premise upon which the contention rests was rejected. Ground 3 must be dismissed.

Ground 4

49    The appellant submits that the Authority acted unreasonably in that it did not call the appellant for an interview in circumstances where it intended to disbelieve findings which the delegate had believed. The appellant submits that as the delegate had the advantage of assessing the appellant's in-person demeanour, the delegate was in a better position to assess the appellant's credibility and it was unreasonable for the Authority to depart from the delegate's findings without a hearing or giving the appellant an opportunity to respond. Those submissions must be rejected. They misapprehend the role of the Authority and ignore binding authority.

50    The Authority is entitled to make its own findings, which may be distinct from those reached by the delegate. In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, the Full Court (Reeves, Robertson and Rangiah JJ) held that:

[72]    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond.

…

[75]    There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

[76]    It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond.

51    It follows that ground 4 must be dismissed.

Determination

52    It follows from the above reasons that I do not consider that error in the decision of the primary judge is disclosed and I dismiss the appeal. Costs should follow the event in the usual way.

Associate:

Dated:    17 June 2019