FEDERAL COURT OF AUSTRALIA

BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281

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

O’BRYAN J:

Introduction

1    By notice of appeal filed on 20 November 2018, the appellant appeals from a decision of the Federal Circuit Court of Australia made on 2 November 2018 in BMG17 v Minister for Immigration [2018] FCCA 3341. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth).

2    The appellant is a citizen of Sri Lanka. He arrived in Australia by boat in September 2012 and subsequently lodged an application for a permanent Protection (Class XA) visa in August 2013. That application was deemed invalid under s 46A(1) of the Migration Act 1958 (Cth) (Act) because the appellant entered Australia as an unauthorised maritime arrival. On 20 November 2015, the Minister notified the appellant in writing that the statutory bar in s 46A had been lifted and invited the appellant to apply for a Safe Haven Enterprise Visa, which the appellant did on 1 June 2016. That application was refused by a delegate of the first respondent (Minister) on 29 November 2016 under s 65 of the Act.

3    In accordance with s 473CA of the Act, the Minister referred the decision to the second respondent, the Immigration Assessment Authority (IAA), for review. The IAA affirmed the delegate’s decision on 21 February 2017.

4    By application filed on 6 April 2017, the appellant sought judicial review of the decision of the IAA by the Federal Circuit Court pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

Grounds of appeal

5    An appeal to the Federal Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is by way of rehearing. Nevertheless, it is necessary to show error (whether of fact or law) in the primary decision: Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 at [26]. As observed by Katzmann J in SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 at [21], an appeal from a decision of the Federal Circuit Court “is an appeal by way of rehearing but a rehearing is not a new hearing”.

6    The appellant was not represented before the Federal Circuit Court. The five grounds on which the appellant sought review of the decision of the IAA can be described as formulaic. It is unnecessary to set them out. Each was dismissed by the primary judge.

7    The grounds of appeal contained in the notice of appeal that was originally filed in this Court overlapped with the grounds of review in the Federal Circuit Court and were similarly formulaic. The appellant sought leave to file an amended notice of appeal by which he abandoned the grounds of appeal set out in the original notice of appeal and substituted a single new ground of appeal: that the Federal Circuit Court erred in failing to find that the IAA failed to give genuine and proper consideration to a claim or integer of a claim. The particulars of the claim were stated as follows:

a) The IAA accepted that the appellant had been a combatant for the Liberation Tigers of Tamil Eelam (LTTE), having been forcibly recruited.

b) The IAA at [16] referred to country information that the Sri Lankan authorities continue to search for former LTTE members, but found "to assess the likelihood of the Sri Lankan authorities discovering the applicant's past LTTE involvement is speculation."

c) In declining to assess the likelihood of harm to the applicant being subjected to harm because the authorities had discovered his past LTTE involvement, the IAA failed to give genuine and proper consideration to a claim or an integer of a claim.

8    The appellant submitted that, although the new ground of appeal was not advanced below, it is a ground that is clearly arguable and there is no substantial prejudice to the Minister if leave were to be granted, relying upon VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]. The appellant also submitted that the reason that the ground was not advanced below is explicable by the fact that the appellant was then unrepresented. The applicable principles were recently discussed by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [35]-[38].

9    The Minister did not oppose the grant of leave. Although, for the reasons explained below, I have come to the conclusion that the new ground of appeal cannot be sustained and the appeal should be dismissed, I grant leave to the appellant to file the amended notice of appeal.

10    As the new ground of appeal was not raised before the primary judge, it is unnecessary to refer to the reasons of the primary judge. I record for completeness that no error in the primary judge’s reasons has been shown. I therefore turn to the reasons for decision of the IAA.

Reasons for decision of the IAA

11    The IAA summarised the appellant’s claims for protection as follows, about which no complaint is made (Reasons [4]):

•    He is a citizen of Sri Lanka and is of Tamil ethnicity and Hindu faith.

•    He was born on 2 March 1992 in Jaffna, Sri Lanka. He grew up in Irupalai, Kopay, Sri Lanka with his parents and seven siblings, four sisters and three brothers. His father was a farmer and his mother a house maker. He used to travel between Jaffna and Kilinochchi where his father worked.

•    His maternal uncle from Kilinochchi was a member of the LTTE and has been missing since the last part of the war. He assumes he was abducted by the Sri Lankan Army (SLA) because of his involvement with the LTTE and because people in his village told him that. The Criminal Investigation Department (CID) have come to his home and questioned him about his uncle’s whereabouts and threatened him to take him to their camp for questioning on several occasions. Based on his uncle's affiliation with the LTTE, the SLA believes the applicant is connected with the LTTE. He was under strict controls and could not go out after 8pm and if he was picked up he would be heavily questioned and they would be suspicious about what he was doing. Due to his uncle’s membership in the LTTE, this caused the CID to treat him with suspicion. Ever since he left Sri Lanka the CID have come to his home looking for him.

•    He moved often between Jaffna and Kilinochchi. When the CID or the SLA showed up in Kilinochchi looking for him, he would flee to Jaffna.

•    When he was living in Kilinochchi he was coerced under duress to join the LTTE at or around March 2007. He fought for a period of over one month with the LTTE and sustained an injury in April 2007 to his left hip after he was struck with a shell fragment. He was treated by LTTE operatives who took him to their medical facility where he stayed at this facility for about 10 to 15 days before he left and returned home. He eventually had the fragment removed from his body on 17 March 2016 in Australia. He has scarring on his left hip.

•    In or about May 2009 he was detained by the Sri Lankan government in a refugee camp for a period of six months. The camp was in Chettikulam, Vavuniya. The SLA questioned him as to how he sustained his hip injury and he said he was injured in the war fighting for the LTTE under compulsion. The SLA then suspected he was voluntarily involved in the LTTE movement. The SLA suspected he was affiliated with the LTTE or sympathising with their agenda because he lived in a former LTTE controlled area.

•    He fled Sri Lanka in 2012 because of threats against his life by the SLA and the CID, on the assumption that he was associated with, or a sympathiser of, the LTTE.

•    He had a telephone conversation with his brother, [redacted], in late 2013 who told him that the SLA had visited him and asked as to his whereabouts and was questioned and threatened. He did not disclose the applicant’s whereabouts. His parents then lodged a complaint with the Sri Lankan Human Rights Commission on the basis that his brother is being persecuted by the SLA and the CID of Sri Lanka because of his brother’s alleged affiliation with the LTTE. His parents have since made arrangements for his brother to flee Sri Lanka and his brother is now living in Malaysia.

•    As a young Tamil from northern Sri Lanka (Jaffna and Kilinochchi), he is at great risk. The Sri Lankan authorities believe that all Tamils in Sri Lanka are associated with the LTTE. He also has family members who were with the LTTE and he is scared of being sent to prison because he thinks his life will be in danger there. He thinks he will be held in prison because of his background.

•    He has an injury which will cause the authorities to believe he was fighting for the LTTE.

•    He left the country illegally and will be detained and punished because of this. He also fled Sri Lanka and asked for asylum here in Australia which will raise further suspicion. The CID will also accuse him of being a LTTE member because he has been away for a long time.

12    In relation to the appellant’s claim to fear harm by reason of his maternal uncle’s LTTE membership, the IAA accepted that the appellant’s uncle was a voluntary member of the LTTE and that he had been missing since the last part of the war. It also accepted that the appellant was likely questioned and threatened by the CID about his uncle’s whereabouts on a number of occasions. However, it did not accept that the appellant’s uncle had been captured by the SLA. Nor did the IAA accept that the CID or SLA believed that the appellant was or is involved with the LTTE on account of his affiliation with his uncle. The IAA also did not accept that the CID continued to come to the appellant’s house to ask of his whereabouts after he left Sri Lanka or that the CID had questioned his brother about his whereabouts. On this basis, the IAA was not satisfied “the applicant faces a real chance of harm, on return to Sri Lanka, due to his uncle’s LTTE membership or because his uncle is still missing or because he has been imputed to be a member/supporter of the LTTE because of his uncle’s LTTE membership” (Reasons [9]-[11]).

13    In relation to the appellant’s claim to fear harm on the basis of his own LTTE membership, the IAA accepted that the appellant was forcibly recruited to the LTTE in 2007 and fought for over one month before being injured and returning home. The IAA also accepted that the appellant was held in a government-run camp for internally displaced persons (IDP) in Vavuniya for 6 months from about May 2009 and that whilst he was residing in the IDP camp, the SLA had asked him how he sustained his injury. The IAA, however, did not accept that the appellant divulged his recruitment to the LTTE. Having regard to country information, the IAA was satisfied that, had the appellant divulged this information to the Sri Lankan authorities, he would have been detained, further questioned and likely sent to a rehabilitation camp. The appellant had not claimed that there was any consequence to his admission of LTTE involvement to the Sri Lankan authorities and denied he had to report to anyone after he was released from the camp. For those reasons, the IAA did not accept that he told the SLA that he had been recruited to the LTTE whilst held in the camp (Reasons [13]-[15]).

14    The ground of appeal raised by the appellant focusses on the following part of the IAA’s reasons at [16] (and specifically the highlighted passage):

DFAT notes that, 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. Given the applicant was released from the IDP camp after six months and continued with his education and work and was of no further interest to the Sri Lankan authorities in regards to suspected LTTE involvement for the next three years, I am not satisfied the Sri Lankan authorities had any knowledge or suspicion in relation to his brief time in the LTTE. Although the country information before the delegate indicates that the Sri Lankan authorities continue to search for the former LTTE members, to assess the likelihood of the Sri Lankan authorities discovering the applicant’s past LTTE involvement is speculation. (emphasis added)

15    The IAA accepted that, in late 2013, the SLA may have questioned the appellant’s brother as to his whereabouts, but was not satisfied that this was in relation to the appellant’s former LTTE membership. Rather, the IAA considered it more likely that this was in the context of general monitoring and surveillance of Tamils that was occurring at that time (Reasons [17]).

16    In relation to the appellant’s fear of harm by reason of the shrapnel injury to his left hip, the IAA accepted the cause of the injury. However, the IAA observed that the appellant did not appear to have been of any further adverse interest to the Sri Lankan authorities due to his injury and appeared to have continued his life without any problems after his release from the IDP camp. The IAA concluded that it was not satisfied the appellant faced a real chance of harm from Sri Lankan authorities or any other group due to suspicion of LTTE involvement due to his injury (Reasons [19]).

17    In relation to the appellant’s fear of harm by reason of his Tamil ethnicity and having lived in a former LTTE-controlled area in the north, the IAA concluded that it was not satisfied that the appellant had a profile such that he would face a real chance of harassment or surveillance on return to Sri Lanka by the Sri Lankan authorities, having regard to its findings that the appellant was not of interest to the authorities and relying on country information, including DFAT’s more recent 2017 assessment. The IAA concluded that, on the basis of the applicant’s circumstances and the country information before the IAA, that it was “not satisfied that there is a real chance the applicant will be subject to a level of discrimination, as a Tamil, as to amount to serious harm” (Reasons [20]-[26]).

18    In relation to the appellant’s fear of harm due to returning to Sri Lanka as a failed asylum seeker and as someone who departed illegally from Sri Lanka, the IAA concluded that the legal consequences that would be visited upon the appellant upon return to Sri Lanka do not amount to serious harm or persecution (Reasons [27]-[37]).

19    Based on the foregoing, the IAA concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and therefore did not meet the criterion in s 36(2)(a) (Reasons [39]). For similar reasons, the IAA concluded that there are not substantial grounds for believing that there is a real risk that the appellant would suffer significant harm as a consequence of being returned to Sri Lanka and that the appellant did not, therefore, meet s 36(2)(aa) (Reasons [50]).

Consideration of the appeal

20    The appellant’s appeal is focussed on the following sentence in the IAA’s reasons at [16], noted above:

Although the country information before the delegate indicates that the Sri Lankan authorities continue to search for former LTTE members, to assess the likelihood of the Sri Lankan authorities discovering the applicant’s past LTTE involvement is speculation.

21    Counsel for the appellant submitted that, by characterising the assessment of the appellant’s claim (to fear harm) as involving speculation, and by treating that characterisation as determinative, the IAA failed to conduct the assessment required by s 473CC of the Act. It was submitted that the assessment of the refugee and complementary protection criteria in ss 36(2)(a) and (2)(aa) of the Act, which requires application of the “real chance” and “real risk” tests respectively, necessarily involves speculation about the likelihood of the feared events occurring in the future. In that respect, counsel for the appellant relied on the following summary of the applicable principles in CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 at [23] (CSO15):

Both the refugee and complementary protection criteria, insofar as they require a focus on risk of harm (whether for specific reasons or not), require the decision-maker to engage in a predictive and therefore somewhat speculative task about what is likely to happen to a person in the reasonably foreseeable future on return to her or his country of nationality: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277-279 (Brennan CJ, Toohey, McHugh and Gummow JJ); NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] (Gray, Tamberlin and Lander JJ); Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [27] (Heerey, Moore, Goldberg JJ); SZQXE v Minister for Immigration and Citizenship (2012) 134 ALD 495 at [7] (Flick J). These authorities were considered in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [59]-[60].

22    Counsel for the appellant also relied on the recent statements of the Full Court in AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 at [48] and [63] (AKH16):

[48]…the assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future.

[63]…As we have indicated above in dealing with the true enquiry, it may lead to error to focus on such notions as ‘speculative’ in this context. However, in considering an assessment of the future, there must be some degree of speculation (as distinct from guesswork) based upon present and past information. For instance, one is speculating in this sense about the future when one is considering and making a finding as to whether further sectarian violence may occur and if so, whether a particular individual is likely to be affected by or caught up in it. However, on the ultimate issue the question always remains that dictated by the principles outlined in Chan and Guo to which we have referred above. The inquiry being fact intensive, and involving assessment of evidence and material which is qualitative and may tend in different directions, it is also possible that different decision-makers may assess the material before them differently. The task for each decision-maker is, relevantly, to determine what she or he is satisfied the reasonably foreseeable future holds for the individual applicant on return to her or his country of nationality, in terms of her or his articulated fear of persecution.

23    Counsel for the appellant submitted that this was not a case where the IAA had dismissed the risk of harm feared by the appellant as “remote or speculative”. Rather, it was submitted, the term “speculation” was used by the IAA to avoid making an assessment and a finding about the likelihood of certain events occurring in the future, which was central to its statutory task. It was submitted that the IAA's failure to give proper consideration to this element of the appellant's claim amounted to a constructive failure of the IAA to exercise its jurisdiction: BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 at [61]-[64].

24    Counsel for the Minister submitted that the appellant’s argument was based on a mischaracterisation of the IAA’s reasons. It was submitted that a fear is not well-founded if it is merely assumed or is based on mere speculation and that that was the sense in which the IAA used the word “speculation”. The Minister relied on the following observations of the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572 (Guo) made when discussing the meaning of the phrase “well-founded fear of persecution” and the application of the “real chance” test stated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379:

In the present case, for example, Einfeld J thought that the "real chance" test invited speculation and that the Tribunal had erred because it "has shunned speculation". If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context and his Honour's conclusions concerning the Tribunal's reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

25    It is apparent from the authorities relied on by the appellant and the Minister that, in assessing the risk of harm for the purposes of the refugee and complementary protection criteria, the use of the word “speculation” can be problematic. As observed by the High Court in Guo, the ordinary dictionary meaning of the word “speculation” is conjecture or surmise. Adopting that meaning of the word, the statutory task of assessing a person’s application for a protection visa under s 36 of the Act requires more than speculation: the refugee criterion requires the applicant to show a well-founded fear of persecution and the complementary protection criterion requires the applicant to show a real risk of significant harm. Neither are established by speculation, in the ordinary meaning of that word. However, the word speculation is sometimes used in a broader sense to mean predicting future events. That is the sense in which the word was used by the Full Court in CSO15 and AKH16, referred to above. As observed by the High Court in Guo, there is no error in using the word in that sense provided the applicable statutory test is then applied.

26    These different uses of the word “speculation” in this context were also discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277:

The use by the delegates of the phrase "I consider it speculative ... to suggest that [the respondents] would be treated more harshly than in the known relevant cases" was taken by the Full Court to indicate that the Chan test miscarried. … The Full Court found that the phrase "seems to suggest that speculation ought not be engaged in". It interpreted "speculation" as used by the delegates to encompass prediction of the future. From this it followed that the Chan test must have miscarried because it is clear that the test in Chan necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation "real chance". If the Full Court was right in its characterisation of the delegates' reasons, then that would certainly demonstrate an incorrect approach. However, with respect, the Full Court was in error when it so characterised the delegates' reasons. The word "speculative" in the context in which it appears need not amount to a denial of the delegates' function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate.

27    In the present case, I am satisfied that the IAA used the word “speculation” in its ordinary sense – conjecture or surmise. In the passage relied on by the appellant, the IAA conveyed that the appellant’s fear that the Sri Lankan authorities would discover his past LTTE involvement was not well-founded and involved mere speculation. That conclusion followed a thorough discussion of the appellant’s claims and the material before the IAA, and was a conclusion open to the IAA on that material. There was no error in the IAA reaching that conclusion. The following matters support that conclusion.

28    First, the IAA correctly summarised the meaning of the phrase “well-founded fear of persecution”, referring to the “real chance” test (Reasons [6]).

29    Second, the IAA applied the “real chance” test in considering the appellant’s claims. The IAA considered each basis of the appellant’s fear, assessing the submissions and material before it, and in respect of each of them concluded that it was not satisfied that the appellant faced a real chance of harm either individually or collectively (Reasons [11], [19], [26], [36] and [38]).

30    It is therefore apparent that the IAA was cognisant of applying the “real chance” test in assessing the appellant’s claims. That leads to the question: why, in the context of considering the appellant’s claims to fear harm by reason of his previous involvement with the LTTE, did the IAA (at [16] of its reasons) use the word speculation? In my view, the IAA used that language to convey the conclusion that it did not consider that there was any proper basis to believe that the Sri Lankan authorities would in the future discover the appellant’s previous involvement with the LTTE. The IAA had found that, despite the appellant having been held in an IDP camp, the Sri Lankan authorities were not aware of the appellant’s previous involvement with the LTTE (evidenced by the fact that he had been held and released without facing further scrutiny). In those circumstances, the IAA concluded that there was no basis for a belief that the appellant’s previous involvement with the LTTE would be discovered in the future. In context, the use of the word “speculation” was directed to the underlying factual predicate for the claimed fear, conveying a finding that the underlying factual predicate was not well founded and involved mere conjecture.

31    For those reasons, I reject the appellant’s submission that the IAA failed to give proper consideration to this element of the appellant's claim which amounted to a constructive failure of the IAA to exercise its jurisdiction. The IAA considered the claim but rejected it on the basis that it involved mere speculation and, accordingly, the fear was not well founded. I therefore dismiss the appeal with costs.

Associate:

Dated:    16 August 2019