FEDERAL COURT OF AUSTRALIA

ERQ17 v Minister for Home Affairs [2019] FCA 1114

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal is granted.

2.    Leave to rely on the new grounds in the amended notice of appeal is refused.

3.    The appeal be dismissed.

4.    The appellant to pay the costs of the first respondent to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an appeal from an order made by the Federal Circuit Court of Australia on 6 December 2018 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 29 September 2017 affirming the decision of the Minister’s delegate to refuse the grant of a protection visa to the appellant: see ERQ17 v Minister for Immigration & Anor [2018] FCCA 3909.

2    The appellant is a citizen of Sri Lanka, although he fled that country with his family many years ago, during the civil war. He arrived in Australia as an unauthorised maritime arrival on 25 June 2013. On 31 October 2016, he lodged an application for a protection visa. On 21 March 2017, the Minister’s delegate refused the application and the matter was referred to the Authority for review pursuant to Part 7AA of the Migration Act 1958 (Cth) (Migration Act).

Background

3    The appellant made claims which were before the Minister’s delegate, in support of his application for a protection visa. The appellant also made a written submission to the Authority which provided further details of the above claims and also some additional claims, including that he had participated in protest marches and that he might be perceived by the Sri Lankan authorities as being opposed to the government. At least in respect to some of this additional information the Authority found that it was not satisfied that exceptional circumstances existed under s 473DD to justify considering the material.

4    The basis of the appellant’s claim in support of a protection visa are summarised in the reasons of the Authority as follows (recited with any errors as they appeared in the original):

•    He is an ethnic Tamil and Hindu from the Northern Province.

•    Since he was born there has always been conflict between the LTTE (Liberation Tigers of Tamil Eelam) and SLA (Sri Lankan Navy) and the Tamils where he grew up in Kilinochi were affected by the conflict as the main office of the LTTE was situated in his area.

•    He was continually living in fear of bombings and shellings in his area when he was a young child.

•    He witnessed the death and killing of many Tamil people as a child.

•    He and his family were regularly displaced and forced to move due to the war and targeting of Tamils by the SLA.

•    Many people in Kilinochi were part of the LTTE and his family members were well known for supporting the LTTE. His family members were well known as a LTTE family due to his family member’s active involvement supporting the LTTE.

•    His father used to run a small food stall and provided food to the LTTE members.

•    His step-brother P was a member of the LTTE for six years during the war. His mother told him that he held a senior position and was responsible for managing a base camp situated in Kilinochi. P later moved to Colombo.

•    His stepsister V had two sons who were also involved with the LTTE. One of her sons was killed during the war. While V and her family were displaced during the war and moved to a camp in Vavuniya, the SLN took her other son and poured acid over him and killed him. This incident was in the newspapers.

•    V’s youngest daughter was told to join the LTTE and later imprisoned by the SLA as a suspected member of the LTTE.

•    In November 1996 when he was about 13 years old, the appellant and his family left Sri Lanka illegally and went to India. Not all of his family went with him. He left with his parents, three of his siblings, L, M and C.

•    On 13 November 1996 they were caught by the SLN and arrested. They were detained for a day and details recorded that they had attempted to leave Sri Lanka. He was sexually assaulted by SLN officers.

•    They were sent to Pesalai Refugee Camp for Tamils on Mannar Island operated by the United Nations Commissioner for Refugees (UNHCR). It was an open camp and members of the SLA and non-uniformed LTTE would come into the camp. His parents feared for the safety of his sister and their family and after less than a week his family left the camp and fled to India.

•    His family lived as refugees in a camp in Ramaeswaram from about 1996 to 2000 and then moved to a refugee camp in Coimbatore.

•    In about 2009 he was involved in a protest by the Sri Lankan refugees in India against the mistreatment of Tamil people who had been rounded up at the end of the war by the SLN in Northern Sri Lanka. He went on a hunger strike and demanded that the SLA not kill the Tamil people. The media and TV were covering the protest.

•    In February 2014 the Department of Immigration and Boarder Protection (DIBP) leaked his personal details on their website and he fears that the disclosure of this information would put him at greater risk.

•    He fears harm form the police and the armed forces in Sri Lanka as they believe that all Tamils support the LTTE even though it has been disbanded.

•    Given his family’s LTTE background he fears that he may have a profile with the Sri Lankan authorities and this risk would be heightened due to his absence from Sri Lanka for many years.

•    Having been a refugee in India and an asylum seeker in Australia will increase the suspicion that he has been involved in activities against the Sri Lankan government and hold anti-government political opinions.

•    Given the trauma that he has suffered as a result of being sexually abused as a child by the SLN, any interrogation will cause him severe psychological harm.

The Authority

5    The Authority made a number of factual findings which are accurately summarised by the Court below as follows (with references omitted):

After dealing with the question of what information it had before it and what it could consider, the Authority made its findings about the applicant’s claims. Those findings are summarised accurately by the Minister in his written submissions at [6] through to [10]:

6. The Authority accepted much of the applicant’s account, including that his step-brother and his step-sister’s three children were involved in the LTTE, and that the step-sister’s two sons had been killed and her daughter was detained. It also accepted that the applicant and his family had been displaced and relocated to India in November 1996, and that the applicant had been sexually assaulted.

7. The Authority accepted that the applicant did not want to stay in Sri Lanka due to the psychological trauma of the sexual assault and that he had a subjective fear of Sri Lankan military officers. However, having regard to country information, the Authority was satisfied that the applicant would not suffer serious harm on account of the sexual assault in 1996. Further, it was satisfied that if he were to suffer psychological trauma as a result of any interaction with Sri Lankan authorities, it would not involve any systematic discriminatory conduct as required under the Act.

8. In relation to the remainder of the claims, and on the basis of country information, the Authority made the following key findings:

(a) it did not consider the applicant would be imputed with pro-LTTE opinions, or be suspected of having been LTTE himself;

(b) it was not satisfied the applicant would have attracted the adverse attention of authorities for his participation in a protest in 2009;

(c) it was not satisfied the applicant would face a real chance of serious harm from any Sri Lankan authority or anyone else as a young Tamil male from the Northern province or an area formerly controlled by the LTTE; and

(d) it did not accept the applicant would be harmed as a result of the data breach.

9. In relation to the applicant’s illegal departure, the Authority found that any experiences or penalties on return would not amount to serious harm and that he would face a ‘law of general application’. The Authority did not accept the applicant would face harm as a failed asylum seeker.

10. For those reasons, the Authority found that the applicant did not meet the requirements of the definition of ‘refugee’ in subsection 5H(1) of the Act. For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion. The Authority also found that the applicant would not face significant harm on account of his illegal departure, psychological trauma or the sexual assault.

Federal Circuit Court

6    The appellant filed 3 grounds of appeal in the Court below. The appellant was unrepresented and made oral submissions, although the primary judge concluded that these amounted to no more than a complaint in relation to the merits of the decision to refuse him a protection visa. Given that the grounds now relied on were not before the Federal Circuit Court it is unnecessary to summarise his Honour’s conclusions in respect to those grounds. Suffice to say his Honour rejected each ground as he was satisfied that the Authority’s decision was not affected by jurisdictional error.

Consideration

7    The appellant filed an amended notice of appeal in this Court which abandoned the three grounds in the original notice, and adds four new grounds. Leave to amend the grounds was not opposed.

8    Those grounds are as follows (with references omitted):

4. The IAA erred when it stated: “Viewing the evidence together, I am satisfied that the applicant would not suffer serious mental harm on account of his sexual assault in 1996”, when the evidence did not support such a finding and so was unreasonable and was a finding that no reasonable person would make, or otherwise demonstrates a lack of intellectual process by the IAA in such consideration, amounting to jurisdictional error.

Particulars

i. The applicant claimed that, given the trauma that he has suffered as a result of being sexually abused as a child by the SLN, any interrogation will cause him severe psychological harm.

ii. He will be interviewed/interrogated upon arrival at the airport as an illegal returnee.

iii. The IAA accepted that as a result of the assault in 1996 the applicant suffers mental trauma and has a subjective fear of the Sri Lankan military officers.

iv. DFAT reports there is universal free health care available through the public sector system but facilities vary and some medicines or treatments may need to be purchased from private providers.

v. Health outcomes tend to be worse in the north and east, partly as a result of the destruction of infrastructure and diminution of human capital during the conflict.

vi. Mental health services are scarce and there is a lack of institutional capacity to respond to mental health care needs. Mental illness is not widely discussed in Sri Lankan society and this can act as a barrier against individuals seeking proper treatment. Anecdotally DFAT understands that the prevalence of trauma-related illnesses following the civil conflict is high, especially in the Northern Province.

vii. The WHO Mental Health Action plan (2013-2020) notes that Sri Lanka's mental health services which were previously hospital-based, are now expanding into the community, a very welcome move ...Analysing the country information I am satisfied that mental health services in Sri Lanka are expanding and improving and there is a move towards a change in attitudes and services associated with mental health.

5. The IAA erred when it stated: “Viewing the evidence together, I am satisfied that the applicant does not face a real chance of serious harm from .... his sexual assault .... now or in the reasonably foreseeable future..”, when the evidence did not support such a finding and so was unreasonable and was a finding that no reasonable person would make, or otherwise demonstrates a lack of intellectual process by the IAA in such consideration, amounting to jurisdictional error.

Particulars

See Particulars to Ground 1 above.

6. The IAA erred when it stated: “I am satisfied that he will not be at risk of harm during, or as a consequence of this routine investigation or than (sic) any questioning will amount to serious harm in light of his childhood experiences..”, when the evidence did not support such a finding and so was unreasonable and was a finding that no reasonable person would make, or otherwise demonstrates a lack of intellectual process by the IAA in such consideration, amounting to jurisdictional error.

Particulars

See Particulars to Ground 1 above.

7. The IAA erred when it stated: “Even if he were to suffer psychological trauma as a result of any interaction with Sri Lankan authorities, it would not involve any systematic and discriminatory conduct as required under the Act.”

Particulars.

i. The conduct was perpetrated by the SLN (Sri Lankan Navy), which was part of the Sri Lankan government authorities, after he (and his family) were caught attempting to leave Sri Lanka by the SLA, detained for a day and details recorded.

ii. The applicant at that time was a child of ethnic Tamil heritage from a former LTTE controlled area.

9    The appellant accepts that these grounds were not raised in the Court below, and as such, leave to rely upon these new grounds of appeal is required.

10    The relevant principles for the grant of leave are those identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48] where the Full Court (Kiefel, Weinberg and Stone JJ) said:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38]. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

11    The grounds were fully argued, with the Minister adopting the approach that the grant of leave to rely on the new grounds of appeal was dependent on whether there was merit in the four new grounds advanced by the appellant.

Grounds 4 and 5: findings in relation to the appellant’s sexual assault

12    These grounds, which rely on the same particulars, relate to two interrelated factual findings of the Authority. First, if the appellant were to return to Sri Lanka he would not suffer serious mental harm on account of his sexual assault, and second, the appellant does not face a real chance of serious harm in Sri Lanka from his sexual assault now or in the reasonably foreseeable future. In respect to each, the appellant alleged that the evidence before the Authority did not support the findings made and that these findings were so unreasonable, or demonstrated such a lack of intellectual process, as to amount to jurisdictional error.

13    Recently, the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] per Reeves, O’Callaghan and Thawley JJ, summarised the position as to whether a decision is legally unreasonable as follows:

The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J).

14    The Court provided the following examples. A decision might be legally unreasonable if it is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: Minister for Immigration and Border Protection v SZVFW (SZVFW) [2018] HCA 30; (2018) 92 ALJR 713 at [10] per Kiefel CJ; [82] per Nettle and Gordon JJ; Minister for Immigration and Citizenship v Li (Li) [2003] HCA 18; (2013) 249 CLR 332 at [68] per Hayne, Kiefel and Bell JJ; or it “lacks an evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ; SZVFW at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ; or it is plainly unjust, arbitrary, capricious or lacking in common-sense: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] per Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [35] per Charlesworth J with whom Flick and Perry JJ agreed at [1], [2].

15    As the High Court has observed, the test of legal unreasonableness is necessarily stringent: SZVFW at [11] per Kiefel CJ; and see [51]-[60] per Gageler J, [78]-[87] per Nettle and Gordon JJ, [131]–[135] per Edelman J.

16    To discern irrationality or illogicality more must be shown than that the decision is one upon which reasonable minds may differ: Minister for Immigration and Citizenship v SZMDS (SZMDS) [2010] HCA 16; (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ, or that the Court would have exercised the discretion to grant the visa in a different way: SZVFW at [18] per Kiefel CJ, [86] per Nettle and Gordon JJ. On the other hand, “illogicality” or “irrationality” giving rise to jurisdictional error, may be made out if there is no logical connection between the evidence and the inferences drawn: SZMDS at [135] per Crennan and Bell JJ; Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] per Perram, Farrell and Thawley JJ, or if there is an irrational or illogical step in the Authority’s reasoning, at least where it can be shown that taking that faulty step, affected a material conclusion on the way to reaching a final decision: SZMDS at [132].

17    In an appeal alleging this ground of unreasonableness the question is whether the Authority’s decision was legally unreasonable and whether the primary judge’s reasoning in this regard was correct. The Court is to decide these questions for itself rather than to defer to what the primary judge has held and require the appellant to identify some error in the primary judge’s reasoning: SZVFW at [18] per Kiefel CJ. The appellate Court must determine not whether the conclusion of the primary judge was open, but whether that conclusion was, in the opinion of the appellate Court, the right conclusion: SZVFW at [20] per Gageler J, [85] per Nettle and Gordon JJ, [154]-[155] per Edelman J.

18    Consequently, the Court must approach this ground by considering whether the Authority committed a jurisdictional error by making a finding that was legally unreasonable, as described above. This is done by reference to the particulars identified in the appellant’s grounds of appeal (as extracted above at [8]).

19    The appellant’s argument commenced with the Authority’s finding in paragraph [22] of its reasons, where it accepted that as a result of the assault in 1996, the appellant suffers mental trauma and has a subjective fear of Sri Lankan military officers. Given that finding, the appellant argued in respect to ground 4, relying on the matters identified in the particulars (i)-(vii), that it was legally unreasonable or illogical for the Authority to conclude in paragraph [22] that “[v]iewing the evidence together, I am satisfied the appellant would not suffer serious harm on account of his sexual assault”. The same argument was made in relation to ground 5, except the impugned conclusion is in paragraph [25], that is, that “[v]iewing the evidence together I am satisfied the applicant does not face a real chance of serious harm from …his sexual assault…now or in the reasonably foreseeable future”. The appellant initially contended that the evidence referred to in paragraph [22] was of a general nature and did not address the appellant specifically (including, whether he would be able to access any mental health services). However, it was ultimately accepted by the appellant that the general nature of the evidence was not really the issue, but rather, that on the appellant’s argument, all of the evidence before the Authority pointed one way as to the poor health services that would be available to him in Sri Lanka.

20    The respondent took issue with the contention that the evidence was all one way. Instead, the respondent submitted that the Authority took into account an array of evidence in relation to mental health treatments available in Sri Lanka, as well as changing attitudes towards mental illness amongst Sri Lankan people. As such, the respondent contended that the Authority’s conclusions in relation to the risk of serious harm arising from the appellant’s prior sexual assault, were not unreasonable or illogical.

21    The respondent’s submission must be accepted. The evidence considered by the Authority was not all one way.

22    Moreover, having made the underlying finding that the appellant suffers mental trauma and has a subjective fear of Sri Lankan military officers, the Authority in paragraph [22] made alternative findings as to the consequences thereof.

23    First, the Authority engaged in an appropriate assessment of the country information as to the nature, quality and availability of mental health services and societal attitudes towards mental illness. The Authority recited and analysed the material. It is apparent from the reasons that the Authority concluded that while there were still some concerns, having analysed the country information, the Authority was satisfied that mental health services in Sri Lanka have been expanding and improving, and societal attitudes towards mental illness are changing. On the material before it, that conclusion was not unreasonable. The assessment of the country information and the weight to be attached to it were matters for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13] per Gray, Tamberlin and Lander JJ; DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87] per Beach, O’Callaghan and Anastassiou JJ. Applying the principles referred to above, and in light of the evidence before it, the Authority’s conclusion that the appellant would not suffer serious harm on account of his sexual assault was not legally unreasonable, nor did it demonstrate a lack of intellectual process.

24    Second, as the Authority concluded, even if the appellant were to suffer psychological trauma as a result of his interaction with the Sri Lankan authorities, it would not involve any systematic and discriminatory conduct as is required to be eligible for a protection visa under the Migration Act. The appellant challenges this finding in ground 7, which will be addressed at [35] to [42] below. Suffice to say at this stage, that ground is not made out.

25    Each conclusion separately and appropriately addresses the appellant’s claim. Neither was legally unreasonable, illogical or irrational or demonstrated a lack of intellectual process.

26    For the same reasons, ground 5 must also fail. The impugned finding in paragraph [25] of the Authority’s decision is also referable to the same analysis that has been undertaken in this judgment in relation to paragraph [22].

Ground 6: harm as a result of questioning on arrival

27    This complaint focuses on paragraph [27] of the Authority’s reasons which is one of the paragraphs which addresses the consequences and processes on return to Sri Lanka, where the appellant has left the country unlawfully. As the Authority describes, on return the appellant will be processed at the airport with checks being undertaken that might involve making inquiries with neighbours or the police in a person’s village.

28    The appellant complains that paragraph [27] does not address his claim in relation to the effect that an interview or investigation may have upon him as he suffers mental trauma and he has a subjective fear of the Sri Lankan military officers. The respondent contends that the reasons, when read as a whole, reflect that the Authority did appropriately address this claim.

29    It is well settled that the reasons for decision of bodies such as the Authority must be read as a whole: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 per Kirby J.

30    In the paragraphs preceding [27], the Authority had addressed claims made by the appellant, including in relation to his sexual assault. This was particularly addressed in paragraphs [22] and [25], which were the focus of the preceding grounds of appeals. As noted above, the Authority made several findings in relation to the sexual assault in these paragraphs, and in relation to other claims.

31    The appellant accepts that in paragraph [27] the Authority correctly describes his claim as “that he is at risk of harm under this process because he will be investigated in relation to suspected LTTE links and any interrogation will amount to serious harm in light of childhood experiences”. The Authority concludes at the end of [27] that “I am satisfied that he [the appellant] will not be at risk of harm during or as a consequence of this routine investigation or than [sic] any questioning will amount to serious harm in light of his childhood experiences. I find that the authorities will quickly establish that he is not of any interest for any reason”. The appellant contends that the reasoning in between those two passages is irrelevant to consideration of the claim.

32    In my view it is not irrelevant. The Authority was addressing factors relevant to determining the nature of the investigation likely to take place (including the claim to suspected links with the LTTE). The nature and scope of any investigation that may be conducted by Sri Lankan authorities upon the appellant’s return to Sri Lanka, must be relevant to the assessment of the effect such investigation might have on the appellant, and therefore, the risk of harm that it poses. Having addressed relevant considerations, the Authority concluded that there was nothing about the appellant which would lead to anything other than a routine investigation. It was in that context that the Authority then assessed his childhood experiences. On a plain reading of the reasons, “childhood experiences”, refers to the sexual assault aspect of the claims. Read as a whole, and in reaching the conclusion it did, the Authority addressed this aspect of the appellant’s claim. Paragraph [27] must be read with paragraphs [22] and [25] and the Authority’s conclusions contained therein. This includes the finding that the appellant would not suffer serious harm on account of his sexual assault. It was unnecessary for the Authority to incorporate its earlier consideration and findings into paragraph [27].

33    For completeness, as the respondent correctly noted, the Authority separately considered these claims in relation to the risk of harm as a result of the childhood sexual assault for the purposes of the complimentary protection, including in the context of any interrogation or investigation of him on his return to Sri Lanka.

34    This ground is not established.

Ground 7: the finding in relation to s 5J(4)(c) of the Migration Act

35    This ground challenges the Authority’s finding that “[e]ven if he were to suffer psychological trauma as a result of his interaction with the Sri Lankan authorities, it would not involve any systematic and discriminatory conduct as is required under the Act”. This is the alternative finding in paragraph [22], referred to above, in relation to ground 4.

36    The nature of the appellant’s argument evolved during the course of the hearing. The appellant accepted that the factual finding was correct in so far as it related to the future. However, he contended that persecution in the past (such as the sexual assault of the appellant, perpetrated by the SLA) could properly be described as systematic and discriminatory and was sufficient by itself to satisfy the criteria in s 5J(4)(c) of the Migration Act. It was submitted that the Authority misunderstood the test in s 5J(4)(c) as it did not consider that this requirement was capable of being satisfied solely by reference to past conduct. The appellant accepted that he could not refer to any authority to support that interpretation. Rather, the argument was said to be based on the words in subsection (c) which, he contended, did not confine a finding of the systematic and discriminatory conduct only to the future.

37    The appellant’s argument misreads the plain terms of s 5J, considered in the context of the legislation, and is inconsistent with authority.

38    Consideration of whether s 5J is satisfied involves an assessment of whether there is a real chance that the appellant may suffer persecution for a Convention reason, if he were to return to his receiving country: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ; AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48 at [35]-[51] per Middleton and Mortimer JJ.

39    Section 5J defines the meaning of a well-founded fear of persecution, and sets out the conditions that must be satisfied for a person to have such a fear. The conditions in s 5J(4), must be satisfied if a person fears the persecution for one or more of the reasons mentioned in s 5J(1)(a). Relevantly for this ground, s 5J(4)(c) specifies that in order for the conditions in s 5J(4) to be satisfied, the persecution that the appellant fears if he were to return to Sri Lanka “must involve systematic and discriminatory conduct”: see discussion in Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [99] per McHugh J.

40    What occurred in the past may be relevant to determining what is likely to occur in the future: Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. However, a finding that an appellant had in the past suffered persecution that involved systematic and discriminatory conduct (but that they would not suffer from such persecution if they were to return to their receiving country), would not satisfy the criteria in s 5J(4).

41    In performing its function, the Authority was obliged to make an assessment of the circumstances, in this case, in Sri Lanka in the reasonably foreseeable future. The Authority correctly applied s 5J(4)(c) and, as accepted by the appellant, the finding it made that “[e]ven if he were to suffer psychological trauma as a result of his interaction with the Sri Lankan authorities, it would not involve any systematic and discriminatory conduct as is required under the Act”, cannot be challenged.

42    This ground is not established.

Conclusion

43    Leave to file the amended grounds is granted. Leave to rely on the new grounds is refused. The appeal is dismissed, with costs.

Associate:

Dated:    19 July 2019