FEDERAL COURT OF AUSTRALIA

BCY17 v Minister for Immigration and Border Protection [2019] FCA 948

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The appellant, a 52 year old Sri Lankan citizen of Tamil ethnicity, appealed from a decision of a judge of the Federal Circuit Court of Australia (FCCA) dismissing an application for review of a decision of the second respondent (IAA). The IAA’s decision, made on 21 February 2017, affirmed a decision of a delegate of the first respondent (Minister) refusing the appellant a Temporary Protection (Subclass 785) visa: BCY17 v Minister for Immigration and Border Protection [2018] FCCA 2044.

2    The appellant applied for the protection visa on 5 August 2016. On 30 December 2016, the delegate refused the visa. The matter was then referred to the IAA.

3    The notice of appeal did not identify any grounds of appeal with clarity.

4    At the commencement of the hearing of the appeal, counsel representing the appellant, Mr Foster, handed to the Court a Notice of Acting – Appointment of Lawyer, which recorded that the appellant had appointed Senthil Rajan Sinnarajah as his lawyer the previous day. I granted leave to the appellant to file an amended notice of appeal and written submissions, concluding that this was the most efficient course where the Minister’s experienced counsel, Mr Reilly, would be able to address the new documents despite their lateness. However, I do accept Mr Reilly’s lament that the Minister and the Court should not have received the documents at short notice, and not in accordance with the Court’s timetabling orders.

5    The amended notice of appeal stated relevantly:

ADDITIONAL GROUNDS

The Federal Circuit [Court] erred when it failed to find the Tribunal:

1.    Failed to take into account a matter which it was bound to take into account/failed to give any weight or any appropriate weight/made an unreasonable finding

Particulars

Paragraph [2.3.9] of the Report of the UK Home Office “Country Information and Guidance Sri Lanka: Tamil separatism”

1.    Made an unreasonable/illogical finding

Particulars

The Applicant was accepted by the IAA as having transported goods for the LTTE and 2 cousins were killed by the SLA, one of whom was accepted as having transported goods for the LTTE

The Applicant fears he would come to the attention of the authorities because of his cousins’ deaths

The UNHCR 2012 & DFAT Thematic Report 2014 reports identify returnees who were involved in the supply or transport of goods for the LTTE as possibly needing international protection

The IAA found the applicant would be investigated and held until completion upon return to Sri Lanka, but considered there is not a real chance that he will be identified as a person of interest and persecuted either during questioning or subsequently.

6    The matters argued by the appellant in writing and orally corresponded with these two grounds and no other matter was addressed. Accordingly, I have treated these two grounds as the grounds of appeal.

Background facts and claims for protection

7    The IAA’s findings concerning the events prior to the appellant’s departure from Sri Lanka in 1990 were not in issue.

Protection claims

8    The IAA summarised the appellant’s claims in the following terms, which were repeated by the appellant in his written submissions:

(1)    In 1985, he was approached by the Liberation Tigers of Tamil Eelam (LTTE) and asked to fight with them. After refusing, the LTTE asked him to transport goods for them, which he agreed to. He did this for two or three years.

(2)    His cousin, K, also transported goods for the LTTE. In May 1987, K and a female cousin, A, were killed in two separate army raids. The appellant left his village fearing he would also be killed and lived elsewhere for three years.

(3)    After the Indian peace-keeping force left Sri Lanka and fighting resumed, the Sri Lankan forces began to kill people like the appellant, whether or not those young people were supporters of the LTTE. In September 1990, he went to his uncle in Mullaitivu and from there travelled illegally to India, where he lived in a refugee camp for 23 years.

(4)    He cannot return to Sri Lanka because he would be investigated because of his 23 year absence. The Authorities would suspect that his cousins were LTTE members because they were shot and they would discover that he had assisted the LTTE.

(5)    He would come to the attention of the authorities on his return because his cousin K was killed by the authorities in the belief that they were killing the appellant and his cousin’s sister was killed as political revenge on the appellant because the security forces came in search of him when he was hiding and couldn’t catch him.

9    The IAA noted the following additional claims made at the appellant’s interview with the delegate:

(1)    He transported weapons for the LTTE.

(2)    The Sri Lankan Criminal Investigation Department (CID) have harassed his family since his arrival in Australia and are looking for him. While looking for him, they assaulted his aunt on four or five occasions.

10    As summarised by the Minister, the appellant’s fears are as follows: if he returns to Sri Lanka, he will be seen as a stranger and investigated by the authorities; the authorities will find out that he transported goods for the LTTE and think that his cousins were shot because they were LTTE members; he will be imputed as an LTTE member and punished for departing Sri Lanka illegally; and he will suffer harm as a Tamil; he contends that the culmination of these factors will mean he will be subject to serious harm.

Events prior to the appellant’s departure from Sri Lanka

11    The appellant was born in the Trincomalee District of the Eastern Province of Sri Lanka, an area formerly controlled by the LTTE. The appellant worked as a farmer while living with his aunt and her children. In 1985, the LTTE asked the appellant to fight with them. After refusing, the LTTE then asked him to transport goods for them. Fearful of retaliation if he refused, the appellant agreed to assist the LTTE in that way. The appellant’s cousin, K, was also recruited to transport goods. They did this work at night so that the Sri Lanka Army (SLA) could not find them. The IAA accepted that the appellant transported goods for the LTTE once or twice a week for approximately two years from 1985 until May 1987.

12    During his interview with the delegate, the appellant initially claimed that the goods he transported for the LTTE were rice, sugar and other groceries. Towards the end of the interview, he claimed that he transported weapons as well.

13    The IAA was not satisfied that the appellant transported weapons for the LTTE. In particular, the IAA found that the appellant’s explanation for failing to mention his transportation of weapons until late in his interview was not plausible.

14    The IAA accepted that in May 1987, K and A were killed in separate raids by the SLA. The IAA did not accept the appellant’s claim that the SLA was targeting him when K was killed. Instead, the IAA was satisfied that K was killed because K had been transporting goods for the LTTE.

15    The appellant claimed that A was raped and killed by the SLA as revenge for not being able to find the appellant. The IAA did not accept this aspect of the appellant’s claim. However, it accepted that the appellant left his village around that time, when raids from the nearby SLA camp were very intense. The IAA accepted that the appellant then lived in the nearby area of Sampur for three years.

16    In 1990, the appellant left Sri Lanka illegally, by boat, for India. The appellant lived in a refugee camp in India for 23 years. He married and had a child while there. In 2013, the appellant left India by boat and came to Australia.

Events since the appellant’s departure from Sri Lanka and risk of harm on return to Sri Lanka

17    The IAA found that the appellant had fled the civil war in 1990 and then resided in India for 23 years.

18    During his interview with the delegate, the appellant claimed that his aunt had been harassed by the CID since he arrived in Australia, as they are looking for the appellant.

19    The IAA was not satisfied that the SLA was ever aware that the appellant was involved in transporting goods for the LTTE, or that he was a person of interest at the time that he left Sri Lanka in 1990. It noted that the appellant had provided an evasive response when asked by the delegate whether he had any interactions with the SLA in the two years he transported goods for the LTTE and that he had lived uneventfully in a nearby area for three years after the death of his cousins.

20    As the IAA did not accept that the appellant was a person of interest to the Sri Lankan authorities, it did not accept that his aunt had been visited and assaulted by Sri Lankan authorities asking after the appellant in December 2016.

21    The IAA accepted that country information supported the fact that Tamils may be imputed as being connected to the LTTE. It further accepted, on the basis of country information, that there may be a need for protection if a person “identifies as having certain links to the LTTE”, including for transporting goods for the LTTE. However, it reiterated its previous finding that the SLA was not aware of the appellant’s work transporting goods for the LTTE.

22    The IAA was not satisfied that the appellant’s name was on any ‘stop’ or ‘watch’ lists, such that on his return he would be identified as an LTTE member or supporter. The IAA also considered that “[e]ven if I accept that it is possible that his goods transport work might come to light on his return, there is no information before me that a person who performed low level work for the LTTE 27 years ago is at risk of harm”.

23    Noting the possibility that the appellant could be monitored by authorities as a member of the Tamil diaspora returning to Sri Lanka, the IAA found that monitoring did not amount to serious harm and, in any event, considered the risk of monitoring to be remote. The IAA was not satisfied that the appellant was at risk of serious harm from the Sri Lankan authorities on the basis of any actual or imputed political opinion, given the appellant’s lack of profile and the evidence before the IAA.

24    At para 22 of the decision record, the IAA concluded that it was not otherwise satisfied that the appellant was at risk of harm on the basis of his ethnicity, if returned to Sri Lanka. It accepted that, historically, Tamils suffered discrimination on the basis of ethnicity, but noted country information indicated the situation had improved and that the current focus of the Sri Lankan government was to identify Tamil activists working to destabilise the unitary Sri Lankan state. The IAA noted that there was no evidence that the appellant had been involved in such activities.

25    At para 24 of the decision record, the IAA stated:

Advice from the UK Home Office is that Sri Lankan Tamils who sought refuge in India during the civil war are returning in greater numbers and with confidence about the country situation in Sri Lanka. According to one source, the UNHCR monitored refugees returning from India to the east of Sri Lanka and there was no evidence that returnees had been particularly targeted although should a returnee come to the attention of the Sri Lankan authorities because, for example, the person was involved in diaspora activities such as commemorative events, the person’s time spent in India was regarded with suspicion when they returned home. There is no information that having resided in India for a lengthy period, without more, is a risk factor for mistreatment of returning asylum seekers.

26    Overall, the IAA was not satisfied that there was a real chance of serious harm to the appellant if returned to Sri Lanka because of his Tamil ethnicity, former residence in an LTTE controlled area, lengthy residence in India, or actual or imputed political opinion.

27    The IAA accepted that the appellant left Sri Lanka unlawfully and that if returned he would be considered an illegal departee and a returning asylum seeker from a Western country.

28    On the basis of country information, the IAA found that the appellant would be charged for departing illegally, held in custody at the airport, and potentially detained over a weekend. In particular, the IAA found:

[F]ollowing investigation at the airport the applicant will be charged with the offence of illegal departure, held in custody at the airport while investigations are completed, and potentially detained over a weekend pending an appearance before a magistrate. DFAT advises that if a returnee pleads guilty, they are fined and free to go. If they plead not guilty, they are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. There is no information before me to suggest that the applicant was involved with people smuggling. I therefore find that there is not a real chance of a custodial sentence being imposed. If the applicant pleads guilty, I find he will be fined and released and if he pleads not guilty, he will be held on remand pending bail and if later found guilty, fined for the offence of illegal departure. I find that a fine does not amount to serious harm.

29    The IAA further noted that the law was not discriminatory in its terms, selectively enforced or applied in a discriminatory way, such that it met the definition of persecution in s 5J(4) of the Migration Act 1958 (Cth).

30    The appellant noted the following findings made by the IAA concerning the risks to him if he were to return to Sri Lanka:

(1)    There may be some risk of arrest, prolonged detention or other harm if a returnee is identified as having an adverse profile, such as a serious criminal record or suspected connection to the LTTE, and that there have been some reports of returnees in such circumstances being subjected to mistreatment (para 32 of decision record).

(2)    The appellant is not a person of interest to the Sri Lankan authorities (para 33 of decision record).

(3)    The process of questioning and investigation itself does not amount to serious harm and that, considering the entirety of the appellant’s circumstances, there is not a real chance that he will otherwise be identified as a person of interest and persecuted, either during questioning at the airport or subsequently (para 34 of decision record).

31    The appellant referred to the following observations of the IAA at para 32 of the decision record:

The applicant’s claim that because he is Tamil and from a former LTTE area, combined with his lengthy residence outside Sri Lanka, he will be scrutinised and questioned on return by the CID is supported by country information that indicates that individuals returning from abroad are particularly subject to screening. The Immigration and Refugee Board of Canada also quotes Tamils Against Genocide as saying that failed asylum seekers are at risk of persecution on return simply by virtue of the fact that they sought asylum abroad and their imputed political opinion as sympathisers of the LTTE.

And at para 34 of the decision record:

The country information referred to above indicates that being a failed asylum seeker or returnee from a western country will not itself result in harm nor does being of Tamil ethnicity and having resided in India for a lengthy period.

32    At para 35 of the decision record, the IAA concluded:

I have also considered whether, given his profile, and taking all of the claims which I have accepted together, there is a real chance that the applicant will suffer serious harm on his return. Considering his profile as a person who transported goods for the LTTE once or twice a week for 2 years from 1987 to 1989, who fled the civil war in 1990 and resided in India for 23 years, and who will be returning as an illegal departee and returning asylum seeker, I am not satisfied there is a real chance the applicant will suffer serious harm on his return to Sri Lanka or in the reasonably foreseeable future.

Appellant’s submissions

First ground of appeal

33    The appellant noted that the IAA had before it several items of country information, including a United Kingdom Home Office report entitled Country Information and Guidance – Sri Lanka: Tamil Separatism (Version 2, May 2016) (Home Office May 2016 report). This report included the following passage at para 2.3.9:

Furthermore Sri Lankan Tamils who sought refuge in India during the civil war are returning in greater numbers and with confidence about the country situation in Sri Lanka … However, tens of thousands of refugees remain in India and there is evidence that some returnees were tortured and interrogated about time spent in southern India.

34    The appellant submitted that the IAA did not refer to para 2.3.9.

35    The appellant argued that this paragraph was clearly relevant to his situation, having fled the civil war in 1990 and resided in India for 23 years, and the IAA clearly ought to have had regard to it.

36    The appellant submitted that the IAA “committed jurisdictional error by failing to have regard to a matter which it ought to have done, failed to give that matter any or appropriate weight, or otherwise by making a finding that was unreasonable in that no reasonable decision maker would have come to the conclusions reached”, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

37    The appellant also criticised the IAA’s failure to have regard to para 6.5.5 of the Home Office May 2016 report, which states, relevantly:

The International Crisis Group noted in August 2015 report that: “Tamils returning from abroad continue to be arrested under the PTA [Prevention of Terrorism Act] on suspicion of old LTTE involvement.”

38    In oral submissions, the appellant noted that the IAA was clearly aware that he had resided in India for a long time. Mr Foster submitted that, if there was any sort of investigation of the appellant’s involvement with the LTTE on his return, there would be a significant possibility that it would be discovered.

39    Counsel for the Minister, Mr Reilly, referred to para 24 of the IAA’s decision record, set out at [25] above. As Mr Reilly noted, the first sentence of that paragraph evidently quotes from the first sentence of para 2.3.9 of the UK Home Office May 2016 report.

40    Mr Reilly submitted that, in the light of this quotation, it is not plausible that the IAA failed to have regard to the other sentence in para 2.3.9. Mr Reilly further noted that, at para 23 of the decision record, the IAA also addressed the issue of referrals to Freedom From Torture from individuals who had been tortured since January 2015, noting that “the majority of people referred to FFT since then described being questioned about reformation of the LTTE”. In the same paragraph, the IAA noted:

This is consistent with advice from the UK Home Office that the objective of the Sri Lankan government is to identify Tamil activists in the diaspora who are working for Tamil separation and to destabilise the unitary Sri Lankan state.

41    I accept the Minister’s submission. Paragraph 24 of the IAA’s decision record shows that the IAA had regard to para 2.3.9 of the UK Home Office May 2016 report. That paragraph also shows that the IAA considered the risk of harm to the appellant as a returnee from India and made a finding that was open on the evidence, including the whole of para 2.3.9, that there was no information before the IAA that having resided in India for a lengthy period of time, without more, was a risk factor for mistreatment on return. On this basis, I am not persuaded that the IAA failed to have regard to the second sentence of para 2.3.9. Accordingly, the premise of the appellant’s first ground of appeal fails.

Second ground of appeal

42    The appellant argued that, while the IAA found the applicant is not a person of interest to the Sri Lankan authorities, there is a risk that the authorities would discover that he had assisted the LTTE. The appellant argued that, having been found to have assisted the LTTE, he clearly fell within the UNHCR categorisation of persons who may need protection, quoted in the Department of Foreign Affairs and Trade (DFAT) Thematic Report, entitled People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014), and cited by the IAA as follows:

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.

43    The appellant submitted that the IAA had acknowledged this matter at para 20 and para 21 of its decision, but had then stated:

The applicant does not explain how, some 27 years later, his suspected LTTE involvement would come to light on his return ... Even if I accept it is possible that his goods transport work might come to light on his return, there is no information before me that a person who performed low level work for the LTTE 27 years ago is at risk of harm now.

44    The appellant argued that this reasoning failed to reference the IAA’s findings, referred to earlier, that he will be investigated at the airport, charged, and held in custody while investigations are completed, and potentially held over the weekend. The appellant noted his fear that he will come to the attention of the authorities and implicitly his LTTE work will be discovered.

45    Accordingly, the appellant submitted, “the IAA findings are unreasonable”. In support of his argument, Mr Foster referred to the following passage from Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [61] (Griffiths J, Allsop CJ and Wigney J agreeing):

The relevant principles established in [Minister for Immigration and Border Protection v Singh [[2014] FCAFC 1; (2014) 231 FCR 437] may be summarised as follows:

(a)    legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li (at [42]);

(b)    there is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable (at [43]);

(c)    there are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process but the concept of legal unreasonableness can also be “outcome focused” where there is no “evident and intelligible justification” (citing Li at [66] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J) (at [44]);

(d)    where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be rare where the reasons demonstrate a justification but the ultimate exercise of the power is found to be legally unreasonable ([45]-[47]); and

(e)    perhaps most importantly of all, the standard of legal unreasonableness applies across a wide range of statutory powers, but the indicators of legal unreasonableness are found in the scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as being fact dependent (at [48]).

46    The appellant contended that the finding in the last sentence of para 32 of the decision record, set out at [31] above, appeared to ignore the IAA’s acceptance that the appellant was connected to the LTTE, making this finding unreasonable.

47    I do not accept this contention. The last sentence of para 32 is concerned with the position of returnees generally and not the position of the appellant individually.

48    Orally, Mr Foster submitted that the IAA’s decision was affected by unreasonableness by reason of the IAA’s failure to take into account a significant and relevant point, being the “great possibility” that the appellant’s involvement with the LTTE would be discovered by reason of the investigation that would occur on his return to Sri Lanka.

49    In response, Mr Reilly submitted that the IAA considered whether the appellant’s former involvement with the LTTE would be discovered if the appellant were questioned about his illegal departure from Sri Lanka and found that it would not be. Mr Reilly referred to the finding, recorded at [30(3)] above, that there was “not a real chance that [the appellant] will … be identified as a person of interest and persecuted, either during questioning at the airport or subsequently”. Mr Reilly noted that the circumstances which supported this finding were that the appellant was not a person of interest to Sri Lankan authorities; the IAA did not accept that Tamil asylum seekers were necessarily imputed with a pro-LTTE or anti-government political opinion and the country information indicated that being of Tamil ethnicity; and having resided in India for a lengthy period would not of itself result in harm.

50    Again, I accept the Minister’s submission. The IAA made a finding of fact that there was not a real chance that the appellant would be identified as a person of interest. That finding was expressed to be based on a consideration of the “entirety of the [appellant’s] circumstances”. There is no apparent legal error in the IAA’s fact finding on this point. The matters identified by Mr Reilly provided a logical basis for its finding. Another relevant matter was that the appellant did not explain to the IAA how, some 27 years later, his suspected LTTE involvement would come to light on his return.

51    As articulated, the appellant’s case was not that the IAA’s decision was legally unreasonable but rather that a particular finding of fact was unreasonable. As I have accepted that the relevant fact finding did not involve any apparent legal error, the appellant’s second argument also fails.

Conclusion

52    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    20 June 2019