FEDERAL COURT OF AUSTRALIA

DIJ16 v Minister for Home Affairs [2019] FCA 1038

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court dated 26 November 2018 be set aside, including the orders as to costs.

3.    In lieu thereof, order:

(a)    the second respondent’s decision dated 26 October 2016 be set aside; and

(b)    the matter be remitted to the second respondent, differently constituted, for determination according to law.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an appeal from orders made by the Federal Circuit Court on 26 November 2018, dismissing the appellant’s application for judicial review and ordering him to pay the Minister’s costs in the fixed sum of $4,500.00: see DIJ16 v Minister For Immigration & Anor [2018] FCCA 3441.

2    For the reasons set out below, the appeal will be allowed.

Relevant background

3    The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. He arrived on Christmas Island by boat on 17 August 2012.

4    The appellant applied for a protection (Class XA) visa on 18 July 2013 which was subsequently found to be invalid in accordance with s 91K of the Migration Act 1958 (Cth). The appellant was invited to apply for either a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa (SHEV) on 9 September 2015, and applied for the SHEV on 19 November 2015. The appellant was interviewed by a delegate of the Minister on 15 March 2016 and was refused a protection visa in a decision made on 26 July 2016. The decision of the delegate was referred to the Immigration Assessment Authority in accordance with s 473CA of the Migration Act on 1 August 2016.

5    The Authority affirmed the delegate’s decision to not grant the appellant a protection visa on 26 October 2016, and the appellant sought judicial review of the Authority’s decision on 7 November 2016. As I have noted, that judicial review application was dismissed on 26 November 2018, and on 10 December 2018 the appellant filed a notice of appeal in this Court.

6    The appellant has been self-represented throughout this process, and was self-represented on this appeal. He was assisted by an interpreter during the hearing of the appeal. His notice of appeal contains the following ground:

Jurisdictional error due to no following or facts presented.

7    He did not file any written submissions on the appeal. He did, however, seek permission to hand up a letter. The Minister did not object to the letter being handed up and treated as a submission. It has been treated as a submission, although part of it is not legally relevant because it deals with contentions about the current situation in Sri Lanka for returning Tamils such as the appellant. The remainder of the letter repeats some of the contentions which were in the material provided by the appellant to the Federal Circuit Court, and which I deal with below. The terms of the letter were:

1.    I am the appellant in the above case.

2.    In furtherance of my appeal I wish to state the following facts:

a.    The Department of Immigration officials and those who by law looked into my case did not properly examine the evidence in regard to me or the general situation in Sri Lanka.

b.    I am suspected of having helped the LTTE while they were fighting for an independent state for the Sri Lankan Tamils.

c.    I did build bunkers for the LITE while they were in my village.

d.    The Sri Lankan army arrested and detained me as a result.

e.    While in detention I was subject to human right abuses and had no recourse to the courts of law as I was arrested under the Prevention of Terrorism Act.

f.    Even when I moved to Colombo the capital of Sri Lanka the army arrested me and on their instructions the CID followed me and arrested me. I was again beaten up and questioned.

g.    My brother [REDACTED] had been arrested by the Sri Lankan armed forces in Jaffna and harassed.

3.    It is due to these factors stated above that I fled and sought asylum in Australia.

4.    The situation in Sri Lanka is the same at the time I left the country and it continues to date. The Prevention of Terrorism Act is yet in vogue.

5.    The recent religious clashes in Sri Lanka have weakened the law and order situation in that country and have strengthened the hands of the Sri Lankan armed forces in dealing with the civilians. This puts Sri Lankan Tamils like me in danger of arrest and detention.

6.    I have therefore a great fear of being returned to Sri Lanka.

7.    I have no lawyers to assist me and had to seek the assistance of persons within my ethnic community to formulate my appeal into English.

8    The fact of the appellant being without legal representation, not having functional English and being unfamiliar with the Australian legal system has, obviously, affected the way he was able to present his arguments both before the Federal Circuit Court and before this Court. As the Federal Circuit Court reasons make clear, it is apparent that the appellant was able to secure some assistance to put additional documentation and arguments before the Federal Circuit Court.

9    When asked at the hearing of the appeal about those documents, and whether he had any assistance in preparing them, the appellant informed the Court that he had been assisted. The appellant has done his best in the adverse circumstances facing him. The predicament in which the appellant, and litigants like him find themselves, largely because of the unavailability of any publicly funded legal assistance program for proceedings in the Federal Circuit Court and in this Court, makes access to justice far more difficult for them.

10    It is clear the appellant raised two matters before the Federal Circuit Court and raises them again here, one of which should lead to the appeal being allowed. The Minister’s counsel properly accepted that two matters had been raised before the Federal Circuit Court and, at least from the letter handed up at the appeal hearing if not from anything else, those two matters were pressed by the appellant in this Court. The Minister properly took no issue with the form of the notice of appeal in those circumstances.

The Federal Circuit Court’s decision

11    The Federal Circuit Court’s reasons accurately describe the Authority’s decision and reasons. From [16], the Federal Circuit Court reasons describe what occurred at the judicial review hearing, and what the appellant said to the Federal Circuit Court during that hearing. The reasons refer to two affidavits filed on behalf of the appellant and some documents handed up to the Federal Circuit Court during the hearing which were marked as exhibits. All these materials were before the Court on the appeal. The Court also had before it on appeal the Department of Foreign Affairs and Trade’s Country Information Report for Sri Lanka, dated 18 December 2015, which was the key piece of country information upon which both the delegate and the Authority relied. The appellant’s affidavits contained some submissions about the reliance on this report by the Authority, to which I refer in more detail below.

12    From [20]-[25], the Federal Circuit Court reasons deal with the grounds of review as they were expressed in the originating application. There is no appellable error in this aspect of the Federal Circuit Court’s reasons.

13    The Federal Circuit Court reasons then refer to an affidavit filed by the appellant with his judicial review application on 7 November 2016. That affidavit contains contentions about the errors made by the Authority. It relevantly states:

1)    I am the applicant in this case for a judicial review of the decision made by the immigration assessment authority on the 26th of October 2016.

2)    The Immigration Authority cited as the Second Respondent committed jurisdictional error by failure to exercise proper jurisdiction by:

a)    Not examining the provisions of the Prevention of Terrorism Act of Sri Lanka under which I was detained and which is mainly against the Sri Lankan Tamils who attempted to exercise their right of self-determination.

b)    The Second Respondent only examined the provisions of Immigration Emigration Act of Sri Lanka which has only a partial reference to persons like me who left the country without a passport.

c)    The Second Respondent did not examine the real situation of the Sri Lankan Tamils in that country by only depending on the report of the Department of Foreign Affairs and Trade in Australia and ignoring the reports on Sri Lanka by organisations like the Amnesty International, Asia Watch and the Oakland Institute in the USA which is an independent think-tank.

d)    The Second Respondent did not follow the UNHCR guidelines in assessing my claims for a Protection Visa in terms of the facts presented as a young Sri Lankan Tamil from the North of Sri Lanka perceived to have links with the LTTE.

3)    In this regard reference is made to the following paragraph of the Immigration Assessment Authority’s decision: 10, 11, 13, 14, 15, 16, 17, 18, 19, 23, 24, 27, 28, 29, 33, 34, 35 and 36.

4)    I have therefore a well-founded fear of persecution at the hands of the Sri Lankan army if I return to Sri Lanka.

14    The argument about the Authority’s failure to consider the Prevention of Terrorism Act 1978 (Sri Lanka) was also reflected in a further affidavit filed by the appellant on 12 November 2016.

1)    I am the applicant in the case DIJ16v Minister for Immigration and Border Protection & ANOR.

2)    The Second Respondent fell into jurisdictional error by not examining in a proper legal manner the implications of the Prevention of Terrorism Act in relation to Tamils in general and me on the evidence placed.

3)    The country situation in relation to the Sri Lankan Tamils was not examined by the Second Respondent in terms of the laws of Sri Lanka, foreign agencies and the reports of the United Nations.

4)    The Second Respondent was prejudiced in examining my case due to the influence of statements made by the Minster of Immigration of Australia and the statements issued by the local and foreign media.

5)    Reference is made to paragraphs 8,9 and16 of the decision handed down by the Second Respondent in regard to my application for a Protection Visa under the Migration Act 1958.

15    Correctly, the Federal Circuit Court treated these affidavits as submissions on the appeal, insofar as they contained arguments about errors made by the Authority. It also rejected the tender of the two pieces of additional country information, on the basis that they post-dated the decision of the Authority and were not relevant on judicial review.

16    In substance then, the two contentions made by the appellant before the Federal Circuit Court and on appeal were:

(a)    that the Authority had not examined the most recent country information about the situation in Sri Lanka in making its decision on the review; and

(b)    that the Authority had not examined, and had made no determination about, whether the appellant might face arrest and detention on his return to Sri Lanka under the Prevention of Terrorism Act, as he had been detained in the past under this Act prior to leaving Sri Lanka.

17    The Federal Circuit Court’s reasons address both these contentions at [26], [28], [31] and [32] in the following way:

26.    The applicant’s affidavit filed on 7 November 2016 in support of the application also included an annexure, which asserted jurisdictional error by failing to examine the provisions of the Prevention of Terrorism Act, under which the applicant was detained. It is apparent from the Authority’s reasons, as summarised above, that the Authority took into account the existence of the Prevention of Terrorism Act and also the detention of the applicant, and took into account the fact that the applicant was not sent for rehabilitation. On the face of the Authority’s reasons, there was no jurisdictional error of the kind alleged in paragraph 2(a) of the annexure to the first affidavit.

…

28.    In relation to paragraph 2(c), this in substance reflects a disagreement with the country information accepted by the Authority. It was a matter for the Authority to determine what country information to accept. No jurisdictional error is made out by paragraph 2(c) of the attachment to the first affidavit.

…

31.    The applicant filed a further affidavit on 12 November 2018, in which he again raised an alleged error in respect of the Authority not examining the Prevention of Terrorism Act. It is apparent from the Authority’s reasons that it did do so. No jurisdictional error is made out by the applicant in that regard.

32.    There is a further issue raised in respect of country information and again, for the reasons earlier given, it is a matter for the Authority to determine what country information it accepts.

Resolution

18    As I have noted, there is no appellable error in the way the Federal Circuit Court dealt, at [20]-[25] of its reasons, with the grounds of review as they were set out in the originating application. Nor is there any error in the way the Federal Circuit Court dealt with the additional material upon which the appellant sought to rely. Its ruling that country information which was not before the decision-maker was not relevant to the judicial review application was, in the circumstances of this case, an orthodox one.

19    There was also no appellable error in the way the Federal Circuit Court dealt with the appellant’s arguments about the Authority’s use of country information. However, I consider there is an appellable error in the way the Federal Circuit Court dealt with the appellant’s argument about his claim to be exposed to a risk of arrest and detention under the Prevention of Terrorism Act.

20    The Authority did not make any adverse credibility findings against the appellant. It accepted his narrative of what had happened to him in Sri Lanka before he fled, and essentially, accepted his narrative of what conditions were like for Tamils such as the appellant at that time. The Minister fairly accepted on the appeal that this was the case, describing it as a “wholesale” acceptance of his claims about past treatment. At [16] and [18] of its reasons, the Authority made the following findings:

16    I accept the applicant has previously faced harm from the Sri Lankan authorities on the basis of being a Tamil from the Northern Province and suspected of having links to the LTTE, however based on the country information cited above and the change in circumstances within Sri Lanka since the cessation of the civil conflict, I am not satisfied the applicant will face a real chance of harm upon return to Sri Lanka.

…

18.    I accept the unfortunate treatment the applicant faced by the Sri Lankan authorities in the past, however I am not satisfied the applicant is of any adverse interest to the Sri Lankan authorities on the basis of being a young Tamil male from the Northern Provnince and/or for having any real or perceived links to the LTTE. On this basis, I am not satisfied there is a real chance the applicant will face harm upon return to Sri Lanka, now or in the reasonably foreseeable future.

21    At [33] the Authority made the following further finding:

I accept the applicant is a Tamil male from the Northern Province and has previously been arrested, detained and tortured by the Sri Lankan authorities on the basis of being suspected of having links with the LTTE…

22    The fact of this “wholesale” acceptance of the appellant’s narrative of what had happened to him prior to leaving Sri Lanka is relevant to the appellant’s arguments about the Authority’s approach to the risk of him being arrested and detained again under the Prevention of Terrorism Act.

23    Despite those favourable findings, the Authority found (including in the remainder of [33] of its reasons) that the situation in Sri Lanka had substantially improved, and it made this finding by reference to country information, principally the 2015 DFAT report. It also found that the treatment the appellant was likely to receive on being returned, in relation to his illegal departure and the way that would be handled, did not rise to the level of serious or significant harm.

24    Before turning to the two matters raised by the appellant before the Federal Circuit Court, and raised again on the appeal, it is necessary to refer to some errors in the Federal Circuit Court’s reasons.

Errors in the Federal Circuit Court reasons

25    Paragraph [18] of the Federal Circuit Court reasons may not be entirely correct. It states:

The submissions refer to the past events and it is apparent on the Authority’s reasons that the Authority took into account the treatment to which the applicant had been exposed prior to the end of the war, and made adverse findings in respect of the applicant’s claims that were open to the Authority for the reasons given by the Authority.

26    In fact, the Authority made no “adverse findings” about the appellant’s past claims. Rather, it accepted the appellant’s narrative of what had happened to him. Its affirming of the decision under review was solely based on its satisfaction that, at the time of its decision, if the appellant were to be returned to Sri Lanka there was no real chance he would face serious harm on any Convention ground, nor any substantial ground to believe he was at risk of significant harm for the purposes of the complementary protection criteria.

27    Further, what is at [27] of the Federal Circuit Court reasons also appears to be incorrect. Contrary to what is said in that paragraph, the appellant’s affidavit was not asserting the Authority had failed to take into account the terms of the Immigrants and Emigrants Act 1949 (Sri Lanka), but rather that it had only looked at that Act, and its application to the appellant, and not the Prevention of Terrorism Act. The Minister’s submissions also adopt this erroneous approach.

28    Counsel for the Minister fairly accepted these two aspects of the Federal Circuit Court’s decision appeared to be erroneous. These passages may reflect some haste in the preparation of its reasons, which is to some extent understandable in an extremely busy jurisdiction like the Federal Circuit Court. Of course it is always desirable there are no such errors, but in the present case they are of no significance for the determination of the appeal. They do not, of themselves and in the circumstances, constitute appellable errors unless the errors reflect an error in its approach to the decision of the Authority.

Applicable principles

29    The two arguments raised by the appellant both engage well-established principles.

30    In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [45] the Full Court said:

The absence of any evaluation of the post-hearing submission on the point and the material said to support it is all the more telling given the Tribunal did not make its decision until November 2011. It was at that date the statute, read in light of the authorities, required the Tribunal to consider whether or not it was satisfied that the visa applicant’s fear of persecution in Zimbabwe by reason of being an actual or perceived supporter of the MDC was objectively well founded. Where the Tribunal’s reasons disclose no evaluation at all of the latest information or evidence available to it, we do not consider it can be inferred that it formed the state of satisfaction required of it.

31    A decision-maker such as the Authority is required to consider and determine a claim which clearly arises (expressly or impliedly) on the material, relying on established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 at [24] (Gummow and Callinan JJ); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]. These principles apply to the Authority.

32    Failure to mention an argument or claim in reasons may well be able to be treated as evidence of a failure to consider that claim or argument, although the place of the claim in the whole of the matter before the decision-maker will need to be carefully considered: Singh v Minister for Home Affairs [2019] FCAFC 3 at [36] (Reeves, O’Callaghan and Thawley JJ).

The country information argument

33    The Authority’s decision was made on 26 October 2016.

34    It was required, as part of the lawful performance of its task and discharge of its duties under the Migration Act, to review the delegate’s decision by reference to the situation in Sri Lanka as it stood at the time of the Authority’s review. To perform that task, as the Full Court in MZYTS held, it was required to examine and consider country information which was current, and reflected the likely situation to which the appellant would be returned, at least insofar as the Authority could do that by considering the most recent information.

35    The Authority’s function under s 473CC is to “review” a delegate’s decision, and it is well-established that this involves a fresh consideration of the claims made, the material said to support them, and any such material as the repository of the review power may examine: see generally Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-5 (Brennan J) and Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10]. Whilst the way in which the Authority must discharge that function is conditioned by the terms of Pt 7AA, nevertheless, the function remains a “review” function (see s 473CC(1)) and the powers of the Authority include a power to recommend that the delegate’s decision be changed (see s 473CC(2)(b)). This is the approach to the Authority’s function taken by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 at [17].

36    The Authority relied substantially on the DFAT Country Information Report for Sri Lanka, dated 18 December 2015. That report was already some ten months old by the time of the Authority’s decision. This was a report on which the delegate had also relied, although the delegate relied on a much broader and comprehensive range of country information, most of it however pre-dating the 2015 DFAT report, aside from some later media reports about the Sirisena Government.

37    The Authority did, as the Minister submitted, refer to sources of country information other than the 2015 DFAT report: see [10] of its reasons. In any event, the 2015 DFAT report was intended to be a comprehensive source for decision-makers and cross-referenced to other sources of information. It is not inappropriate for the Authority to focus on a document such as this, particularly in the absence of any submissions or material from a referred applicant suggesting a source of country information is inaccurate or unreliable, and in the absence of submissions or other material from a referred applicant expressly directing the Authority to other particular parts of different country information. Any allegations of error in the use of country information will be highly fact-dependent, and will require a high degree of specificity to have prospects of success.

38    In the present case, there was nothing erroneous in the Authority’s reliance on the 2015 DFAT report, and the Federal Circuit Court was correct to reject this challenge.

The Prevention of Terrorism Act argument

39    The appellant had said the following in his original statutory declaration in support of his visa application:

48.    Even though the war is over, the sense and feeling of persecution is still the same. The last time I talked to my family, two months ago, they told me that the Army is still in my village and are still kidnapping and questioning Tamils. Even now in the evenings, Tamils cannot leave their homes for fear of being taken by the Army.

49.    My brother, [REDACTED], was stabbed, cut and beaten on 3rd January 2014 in the evening. He was going to the shops when this assault happened. He was hospitalised for four days. We do not know who did it or why they did it but I have seen in the news and heard from my family that crimes like these are not uncommon for Tamil people. I fear that the same thing might happen to me.

50.    The Army is arresting people who helped the LTTE in the past and I am worried that they will target me in the future. My fear of the Army is still strong because of what happened to me in the past.

51.    I fear if I went back to Sri Lanka, I would be arrested immediately at the airport. The airport officers will most likely hand me over to the Sri Lankan Army who will want to know why I went to Australia and why I came back to Sri Lanka. I am afraid of what they will do to me when they hear my answers.

52.    I know of people who have been returned to Sri Lanka. My family in Sri Lanka have been keeping me up to date with stories back home. They told me that one month ago, someone in Australia was sent back to Sri Lanka. The police arrested this person and kept him in detention. They beat him whilst he was in detention. He was released ten days later but he is under continuous surveillance. The police go to his house every now and again to question him and if they get suspicious they will detain him in the camp.

53.    I am afraid that this will happen to me.

54.    I am unable to relocate to another area of Sri Lanka because my risk of harm extends throughout the whole country. There is nowhere safe for me in Sri Lanka as the Sri Lankan authorities; particularly the Sri Lankan Army is everywhere. If I move out of Tamil provinces like [REDACTED] and into other regions, it does not matter if I am able to avoid the Army because people will notice that I am an outsider and that I am not from that area and they will report me to the Army and there would be a situation like what happened when I moved to Colombo.

55.    The Sri Lankan Army still does not believe that the LTTE is completely gone. I fear they will suspect that I am a supporter or former member of the LTTE if I return. I am afraid that they would kidnap me and detain me or even torture me.

40    That evidence came after a long and detailed recitation of what had happened to him during the civil war, including what he was compelled by the LTTE to do to support them, and the numerous occasions on which he was detained, questioned and beaten by members of the Sri Lankan army and the CID. He described severe physical mistreatment at the hands of the Sri Lankan army in considerable detail in his original statement. He expressly stated that:

I have never admitted to being a LTTE supporter because if I were to admit to being a supporter I would most likely be detained, interrogated, tortured and eventually killed.

41    The appellant’s narrative revealed he had offered a substantive level of support to the LTTE, which he explained in the following way:

I helped the LTTE build bunkers in the past when they were in my village. They came to my house two or three times asking me if I would build bunkers. I did not refuse them, because they put it to me as “Tamils helping Tamils”. Since the LTTE are fighting for the Tamils and their freedom, I see myself as obligated to help them either financially or as a builder if they were to ask me for my assistance. I feel as if I cannot refuse them.

42    He also explained his arrest and detention by the CID when he had fled to Colombo to escape the situation in the north:

The CID took me to the police station, where the police kept me there for three days. On the first day, the police beat me with their batons and they asked me about my involvement with the LTTE. They told me that they suspected that I was an informer and that I had come to Colombo to set up a bomb. I had to explain to the police what had happened to my card, but they were already suspicious that I was an informer for the LTTE and that maybe I was in the city to set off a bomb. It was not until the next day, when an interpreter was allocated to me that I was able to tell them why I was in Colombo.

43    None of this was the subject of any adverse findings by the delegate or by the Authority.

44    While in these statements, he makes no express reference to the Prevention of Terrorism Act, it is apparent the appellant is expressing fears that the Sri Lankan army, and other Sri Lankan authorities, will continue to exercise powers of detention against him, in order to uncover any past or continuing support for the LTTE, and that he will be subject to serious harm if he is detained.

45    That the Prevention of Terrorism Act was a source of power relied on to detain and mistreat Tamils in the past was a link expressly made by the delegate. At [75] of the delegate’s reasons, the delegate found, by reference to the 2015 DFAT report, that:

Whilst many Tamils, particularly in the north and east have previously reported being monitored, harassed, detained and/or arrested under the Rajapaksa government, DFAT assessed that these behaviour have decreased under the Sirisena government. Emergency restrictions are being lifted and the Sirisena government has reviewed and released a number of detainees, including Tamils, arrested under the Prevention of Terrorism Act 1979 (PTA).

46    The DFAT report on which the delegate relied also refers to the Prevention of Terrorism Act. The delegate clearly recognised that Act as a source of power relied on by Sri Lankan authorities to arrest and detain Tamils suspected of involvement in or association with the LTTE.

47    The Authority’s reasons also refer to the Prevention of Terrorism Act at [9] and [14], by reference to the 2015 DFAT report and its account of the history of Tamils being detained under that Act. In the first reference, relying on the DFAT report and some earlier country information, the Authority found:

More Tamils were detained under emergency regulations and the Prevention of Terrorism Act (PTA) than any other ethnic group. Torture and other ill-treatment of persons in custody by the security forces was a widespread problem both during and since the armed conflict. There have also been reports of the police launching massive search operations in Colombo City and arresting a number of people on suspicion.

(Footnotes omitted.)

48    It was in this context that at [14] the Authority found that one of the acts of the Sirisena Government had been to release “some individuals held under the Prevention of Terrorism Act 1979 (PTA)”. This is taken from the 2015 DFAT report, and is similar to the findings made by the delegate. In both cases, there is elaboration about how many people were released, or were still held, not whether arrest and detention under the Prevention of Terrorism Act continued.

49    The Minister accepted these references to the Prevention of Terrorism Act by the Authority were a “step removed” from the appellant himself, but submitted that the findings need to be viewed in the context that the Authority accepted the past treatment of the appellant and found the recent changes in circumstances were the main factors which led it to conclude he did not face a real chance or real risk of harm.

50    There is no debate on the appellant’s own evidence to the delegate and the Authority, that he was not simply articulating a fear about being apprehended on his return for offences relating to unlawful departure from Sri Lanka under the Sri Lankan Immigrants and Emigrants Act. He was articulating a consistent fear of being arrested again by the Sri Lankan army or other Sri Lankan authorities, because he had in fact been associated with the LTTE, and had not revealed that when questioned. His evidence sought to articulate the regular, arbitrary and random nature of the arrests, detention, questioning and mistreatment he had faced in the past.

51    Aside from its general finding at [18] of its reasons, the Authority then went on (at [19]-26] of its reasons) to focus on what, on the country information, it found would happen to the appellant on his return as a failed asylum seeker. This carried through into its complementary protection assessment at [31]-[38].

52    At [27] and [28] the Authority made findings that the appellant did not have a “risk profile requiring monitoring”, and that he did not have a profile of “actual or imputed connection to the LTTE”. However, the cross-references in these paragraphs to earlier parts of its reasons really only go back to the general findings at [16] and [18], which in turn rely on the general improvement in the situation in Sri Lanka, as the Authority found it.

53    Yet at [15], the Authority had accepted:

The current Sirisena government has publicly claimed that military involvement in civilian activities has ceased. DFAT assesses that there has been an overall decrease in monitoring in 2015, but some individuals in the north and east still report being questioned and observed by the military and report that the sizeable military presence remains a factor in aspects of civilian life.

54    This finding is taken from the 2015 DFAT report at 2.39. That full paragraph reads:

2.39    Under the Rajapaksa government the security and intelligence forces in the north and east were known to monitor any possible LTTE activity and any form of civil resistance or anti-Government sentiment. Some community members were questioned by authorities after they were visited by Non-Government Organisations (NGOs) or foreign government officials. Although not officially mandated to do so, in many areas military officers and personnel took a visible and active role in aspects of civilian life. This included participating in community functions, opening development projects such as schools and houses and undertaking community work. The Sirisena government has publicly claimed that military involvement in civilian activities has ceased. DFAT assesses that there has been an overall decrease in monitoring in 2015, but some individuals in the north and east still report being questioned and observed by the military and report that the sizeable military presence remains a factor in aspects of civilian life.

55    At 3.7-3.9 the 2015 DFAT report stated:

3.7    Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA than any other ethnic group. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity. There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The Sirisena government has undertaken to review the list of detainees under the PTA and has released some detainees, including Tamils. The government has said it is willing to work with the International Committee of the Red Cross (ICRC) to provide greater access to detainees for welfare monitoring and to establish a comprehensive database on detainees (see: ‘Arbitrary arrest and detention’ below).

3.8    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.

3.9    DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if such activities occur.

56    At 3.36-3.38 the 2015 DFAT report stated:

3.36    Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those for whom there is an extant court order, arrest warrant or order to impound their Sri Lankan passport while ‘watch’ lists include names of those for whom Sri Lankan security services consider to be of interest, including for separatist or criminal activities. Those on a watch list are not likely to be detained, although there have been some media reports claiming that individuals, mostly Tamils, travelling from the United Kingdom have been detained on arrival at the airport. DFAT has not been able to verify these reports but notes that those on a watch list are likely to be monitored.

3.37    In the north and east, Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations of the area. For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil IDPs who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the Police Criminal Investigation Department (CID) for interviews. Sri Lankan authorities have also increased their security presence in the north and east from time to time. For example, in March 2014, a number of check-points were established due to an alleged resurgence of LTTE activity. DFAT is aware of credible reports of people being stopped, detained and questioned by security forces in 2014 but assesses that these incidences decreased in 2015, since Sirisena came to power. After initially retaining the police powers granted to the military by Rajapaksa, in March 2015 Sirisena did not renew them, thus making military checkpoints in the north technically illegal.

3.38    Most public gatherings in the north and the east are monitored by the police or military. The Government remains sensitive to those expressing views that could be considered sympathetic to the LTTE. In May 2015, the Government allowed Tamils to hold public memorial ceremonies in the north and east to honour dead civilians on the anniversary of the end of the war, however there was a heavy police presence and any other form of demonstration was banned.

57    Then at 3.42-3.43 the 2015 DFAT report stated:

3.42    In addition to a relatively small number of high-profile LTTE members, many thousands of LTTE members have been arrested and detained in rehabilitation centres since the end of the conflict. Generally, this includeS former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military material support to the LTTE during the conflict.

3.43    DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their detention, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centres. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.

58    There is then a specific part of the 2015 DFAT report devoted to activities of Sri Lankan authorities under the PTA, at 3.54-3.55:

3.54    Under Regulation 22 of Sri Lanka’s Emergency Regulations 2005 (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Some of these provisions were replaced by similar regulations under the PTA, which is still in place. Under the PTA, suspects can be held without charge for three-month periods, not exceeding a total of 18 months. In addition to those arrested under the PTA, some former LTTE members have been arrested and detained on other criminal charges. According to Sri Lanka’s then Minister for External Affairs, GL Peiris, as of March 2014, a total of 12,288 LTTE members had been arrested and sent to rehabilitation centres since the end of the conflict in 2009. The majority of those in rehabilitation have since been released and DFAT understands that only 45-50 former ex-LTTE members remain in rehabilitation as of July 2015.

3.55    DFAT is unable to independently verify the number of former LTTE members in detention other than rehabilitation. Former LTTE members continue to be identified and arrested, detained and prosecuted within Sri Lanka’s criminal justice system. In a June 2015 interview for The Island newspaper, Minister of Justice Wijeyadasa Rajapakshe stated that there were only 273 convicted or suspected LTTE cadres in government custody, including those in rehabilitation centres.

59    The report then goes on to describe what kind of people might be selected for “rehabilitation”, or prosecution, noting at 3.61 that “[r]ecommendations for rehabilitation alone are usually only made for low-profile detainees”.

60    At 4.24-4.25, the 2015 DFAT report states:

4.24    Although Sri Lankan law prohibits arbitrary arrest and detention, the PTA allows authorities to detain suspects without charge for up to 72 hours. Following this, a suspect must either be produced before a magistrate or can be held without charge under detention orders for three-month periods not exceeding 18 months. Suspects can be held in irregular places of detention, as well as at police stations, detention centres or prisons.

4.25    The Sirisena government has taken some limited action to deal with individuals detained without charge under the PTA by the former Rajapaksa government. As of the date of this report, the government had released 39 detainees on bail and has committed to streamlining judicial processes for PTA cases, including consideration of rehabilitation as an alternative to custody.

61    In my opinion, the material provided by the appellant both to the delegate and to the Authority, all of which was accepted by the Authority, read with the contents of the country information to which the Authority expressly had recourse, fairly raised the claim that the appellant considered he would continue to face arbitrary arrest and detention, and mistreatment, from the Sri Lankan authorities on return to Sri Lanka. The country information made it clear that the powers under the Prevention of Terrorism Act were what had been, and what continued to be, exercised to effect such arrests and detentions. While the authors of the 2015 DFAT Report expressed an opinion that this kind of conduct was decreasing, there was in fact a lot of detail given in the DFAT report about continued risks, and who might face them.

62    While the Authority made general findings about the decrease in monitoring of Tamils (see [15] of its reasons) it also found that this practice continued and that the “sizeable military presence remains a factor in aspects of civilian life”. While it made a finding at [14] that some individuals held under the Prevention of Terrorism Act had been released, it did not grapple with the way powers under the Prevention of Terrorism Act were currently being exercised, or might be expected to be exercised in the foreseeable future.

63    There is a disconnect, or disconformity between, on the one hand, the Authority’s complete acceptance of the appellant’s narrative of his past treatment (including what the Authority described as “torture” of him by the Sri Lankan authorities) and his past involvement with the LTTE, and on the other, its highly generalised findings that the appellant would have no profile of interest to the authorities on return.

64    That disconformity can be explained by a failure of the Authority to grapple - at the level of active intellectual engagement – with the appellant’s fears about arbitrary arrest and detention under the Prevention of Terrorism Act once he was back in civilian life in Sri Lanka, as opposed to what might happen to him at the airport and in relation to his illegal departure. In relation to the need for “active intellectual engagement” by a decision-maker such as the Authority: see, for example, Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] and Singh v Minister for Home Affairs [2019] FCAFC 3 at [34]-[36]. The absence of any reference by the Authority to, or consideration of, all of the other parts of the 2015 DFAT report to which I have referred, strengthen the inference that the Authority did not turn its mind to whether, as an individual with the specific background he had been accepted to have, there was a real risk or real chance of the appellant being exposed to future exercises of power under the Prevention of Terrorism Act and future arrest, detention and mistreatment.

65    That is not to suggest in all cases that there needs to be a detailed examination of such matters: what distinguishes the present case is the “wholesale” acceptance (as the Minister described it) of the appellant’s narrative about his past LTTE involvement, and his past mistreatment over many years and on many occasions by the Sri Lankan authorities. His articulation of fears of that treatment recurring, in the context of the very country information on which the Authority preferred to rely, fairly raised for consideration at a level more than mere generalities, what the appellant was likely to encounter once he was forced to return to civilian life, whether in the north or elsewhere in Sri Lanka. That did not occur, and the failure of the Authority to engage with this aspect of the appellant’s claims meant it exceeded its jurisdiction.

66    The Federal Circuit Court erred in not identifying this error. It is not to the point that the Authority took into account the existence of the Prevention of Terrorism Act (see [26] of the Federal Circuit Court reasons). Nor is it to the point that the Authority found the appellant was not sent for rehabilitation in the past. The country information identified this as a consequence of arrest under the Prevention of Terrorism Act, not a precursor. Contrary to the Federal Circuit Court reasons at [28], the point being made by the appellant, even though he was self-represented, did not simply raise a disagreement about the country information on which the Authority relied. As I have sought to demonstrate, the very country information which the Authority accepted (as it was entitled to do) contained a great deal more about arrest and detention under the Prevention of Terrorism Act, and monitoring of Tamils, than the Authority’s reasons disclosed. None of these aspects of the 2015 DFAT report were considered by the Authority in the light of the claims being made by the appellant. That is the error.

67    The appeal must be allowed.

Associate:

Dated:    4 July 2019