FEDERAL COURT OF AUSTRALIA

AXD18 v Minister for Home Affairs [2019] FCA 1329

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellants' application for judicial review of the decision of the Immigration Assessment Authority. The Authority affirmed the decision of a delegate of the Minister to refuse to grant to the appellants Safe Haven Enterprise visas.

2    The application was brought by the appellants as a family unit. The first appellant makes a protection claim. The first appellant is an ethnic Tamil from Sri Lanka. The second appellant, his wife, is also from Sri Lanka. The third appellant is their child who was born in Australia. The first appellant is the child's litigation representative.

3    The appeal concerns only one issue, being whether the Authority failed to consider an integer of the first appellant's claim, being the risk of harm he may face as a result of his father's unresolved status as an un-acquitted suspect. Counsel for the first appellant explained that it is accepted that in general the position for Tamils returning to Sri Lanka has improved considerably since the change of government in 2015, but submitted that the father's unresolved status as an un-acquitted suspect was a particular claim that was not properly addressed.

Protection claim

4    The first appellant made a statutory declaration in support of his visa application. He also attended an interview. The Authority at para 7 of its reasons summarised the first appellant's protection claim as follows:

•    He was born in 1980 in a village in Mannar in the Northern Province of Sri Lanka and in 1990 he left Sri Lanka illegally with his parents and siblings and travelled with them to India as refugees. The applicant remained in India until October 2012 when he left illegally with his wife and travelled by boat to Australia.

•    In Mannar the applicant's father transported food and weapons for the LTTE in his passenger transport van. His father also discreetly recruited many Tamils into the LTTE to fight against the SLA. He persuaded the applicant's two uncles, [first uncle] and [second uncle] to join the LTTE in 1983 and 1984 respectively.

•    In July 1988 the applicant's uncle [second uncle] was shot and killed by the SLA after visiting the applicant's father.

•    In June 1990 the applicant's father was abducted by the SLA intelligence and taken to Vavuniya camp. He was interrogated and beaten badly. A Tamil told the applicant's mother they had to get him out of the camp otherwise he would be killed. The applicant's mother paid one lakh for the release of the applicant's father and he was released after five days. The family immediately went to Pesalai and then to India as they were afraid the applicant's father would be killed.

•    In February 1997 the applicant's uncle [first uncle] was killed by masked military men at Semantivu.

•    The applicant's mother's younger sister, [M], grew up with the applicant and his family before they went to India in 1990. [M] was also a fighter with the LTTE. In May 1999 she was injured and managed to escape from Sri Lanka to India however the Indian CID caught her and she was jailed for four years in Chengalpat sub−jail in Tamil Nadu. She was deported back to Sri Lanka in 2004 during the ceasefire. In 2006 SLA intelligence started to investigate her again and she escaped to India. She is married and living in the same refugee camp as the applicant's parents in Selam, Tamil Nadu.

•    The Indian government is aware of the relationship between [M] and the applicant's family as the family visited her in prison in India.

•    In India the applicant's father voluntarily assisted LTTE members and supporters who had escaped to India to travel to other countries by introducing them to agents in India. If the Indian government becomes aware of this he may be arrested and jailed.

•    The applicant fears that if he is forced to return to Sri Lanka the SLA intelligence or the CID who has details about his family's involvement in the LTTE will detain and interrogate him. They will want to know about the applicant's father and aunty. He fears he will be harmed during this questioning process.

•    The applicant's father also has enemies amongst members of paramilitary groups operating in Mannar. There is a lot of enmity between the paramilitary and the LTTE because LTTE have killed many of the paramilitaries. When they learn that the applicant is his father's son they will harm him.

•    The applicant fears returning as a failed asylum seeker. He has a young baby and is afraid that he may be separated from his wife and child at the airport and he fears for their safety.

(emphasis added)

5    Whilst the emphasised passage is an accurate summary of that part of the claim, there is value in noting the original corresponding paragraph of the statutory declaration, as it highlights the connection between the capture and interrogation and the father's LTTE links:

In June 1990 my father was abducted by the Si Lankan army intelligence and taken to Vavunia camp. He was interrogated about recruiting fighters for LTTE and about transporting LTTE's weapons and LTTE members. He was beaten badly and one Tamil person from another group told my mother that we had to get him out otherwise he would surely be killed. My mother paid one lakhs to get my father released. He came out after 5 days. By then we were ready to leave and once my father was released, we immediately went to Pesalai and then to India. If we had not escaped to India my father would have been killed by the Sri Lankan Army intelligence.

6    The appellants' representative also provided a post interview submission to the Department. In addition to reiterating the claims referred to above, this submission also clarified that the first appellant's aunt was an LTTE cadre who was jailed when she fled to India in 1999 and was repatriated to Sri Lanka during a ceasefire in 2004. It claimed that in 2006 the SLA intelligence arm reopened investigations into her and so she again fled to India.

7    Relevantly to the present case, the post interview submission contained the following claim:

Client's profile

The UNHCR Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka in December 2012 provides that, 'the risks facing individuals with the profiles outlined below require particularly careful examination':

•    Persons Suspected of Certain Links with the Liberation Tigers of Tamil Eelam (LTTE) - in particular, those who held senior positions within the LTTE civilian administration, former LTTE cadres, former LTTE supporters who provided material assistance, LTTE fundraisers and propaganda activists, and persons with familial links or are otherwise closely related to individuals with the above profiles.

The client's father's involvement and his aunty's involvement brings him under the profile that requires careful examination.

The Bar Human Rights Committee of England Wales reported that those escape the detention by bribing are recorded as un-acquitted suspect and they will be of significant interests to the Sri Lankan army. Hence, on return the client risks detention and interrogation about his father's past and present activities both before he left Sri Lanka and now.

His aunty was LTTE cadre who now lives with the client's parents in India. She will be of adverse interest to Sri Lankan security agencies as well.

The adverse interest on his father and aunty will be sufficient reason to detain and to investigate about them through the client.

(original emphasis)

8    The submission was before the Authority as part of the materials provided to it in the usual course. The alleged failure by the Authority to properly address the claim as to the first appellant's father is in issue in this appeal.

The Authority's findings

9    The Authority noted that country information relied upon by the delegate was dated and limited, and was therefore satisfied that there were exceptional circumstances to consider updated country information.

10    The Authority accepted the first appellant's claims that his father, uncles and aunt were members of the LTTE and that they assisted the LTTE in the manner claimed. It also accepted that the Sri Lankan authorities suspected the first appellant's father of being involved in the LTTE.

11    The Authority then turned to the question of whether these facts gave rise to the potential for harm for the appellants. It wrote:

19.    The applicant is a Tamil from the North of Sri Lanka - an area under LTTE control during part of the civil war. A significant number of Tamils in the area were LTTE members, either voluntarily or forcibly recruited. Tamils living in areas occupied by the LTTE routinely came into contact with the LTTE and lived within an infrastructure administered by the LTTE. The war ended in May 2009 with the Sri Lankan military decimating the LTTE as a fighting force. In summary, it was not uncommon for Tamils from areas under LTTE control to have the level of involvement with the LTTE described by the applicant in relation to his father, uncles and aunt.

20.    The applicant's two deceased uncles were killed during the war in 1988 and 1997 - approximately twenty and thirty years ago. The applicant's maternal aunt was injured in May 1999, escaped to India, was captured by the Indian authorities and jailed for four years. She was deported back to Sri Lanka during the ceasefire in 2004. In 2006, eleven plus years ago, she was again investigated by the Sri Lankan authorities and fled to India. The applicant's father was abducted by the SLA nearly twenty-seven years ago, in 1990, during the war, more than twenty-seven years ago. The applicant's father was released after five days and after payment of a bribe. These events, as devastating as they would be for the applicant and his family, occurred during the war and that war ended in May 2009- more than eight years ago.

21.    I have considered the submission from the representative that those who escape detention via bribery, as happened to the applicant's father, are at risk of being re-detained and the reference from The Bar Human Rights Committee of England and Wales Report that such people are recorded as an un-acquitted suspect and therefore remain of significant adverse interest to the SLA.

22.    The relevant reference in the Report is as follows: 'Witnesses reported going through immigration on arrival at Colombo airport, then being detained when they emerged from the airport. There is evidence that the authorities have access to database records, going back over a number of years, at the airport. Others reported being detained when they returned to their home address. If a bribe was used to secure release from detention in Sri Lanka, the likelihood is that the person may have been recorded as an 'un-acquitted' suspect. Those who accepted the bribe are responsible for ensuring the reason for the suspect's release is recorded. A person recorded as having escaped or being missing would be of significant adverse interest to the authorities.'

23.    I note also that the applicant's father was not arrested or detained in India in relation to LTTE involvement, unlike the applicant's maternal aunt, who as a known LTTE cadre was, on the applicant's evidence, jailed for four years in Tamil Nadu, India and then deported back to Sri Lanka after her release. However I also note that the aunt, unlike the applicant's father, was injured and her injuries may have been an indication to the Indian authorities that she was involved in fighting. I note that the applicant does not claim that his father was ever charged or convicted in Sri Lanka in relation to LTTE involvement; nor was he detained in India in this regard. The fact of his father's release after five days on payment of a bribe may be an indication that he was not regarded by the Sri Lankan authorities as a member of the LTTE. However it is also plausible that he may be recorded as an 'un-acquitted' suspect as submitted by the representative.

24.    In summary, after assessing the evidence, I accept that the Sri Lankan authorities are aware that the applicant's two deceased uncles were in the LTTE, albeit more than twenty years ago; the applicant's maternal aunt was in the LTTE, albeit eleven years ago; and there may be a record of the applicant's father's five day detention in Sri Lanka twenty-seven years ago. It is plausible that the applicant's father's LTTE involvement may also be known to the Sri Lankan authorities and there is a possibility that he may be recorded as an un−acquitted suspect. I therefore accept that the applicant has family links with the LTTE. I accept that the applicant's father provided material assistance to the LTTE in Sri Lanka prior to 1990 and in India in 2009 and 2010 and has not continued to act in support of the LTTE since 2010. I have considered the submission that the applicant, as a person with family links to the LTTE falls within a category of people identified by the UNHCR in 2012 as a category which may warrant international protection.

25.    I note that the UNHCR guidelines are more than five years old. I note also that there has been a change of government in Sri Lanka since these guidelines were published. Country information reports indicate that the Presidential election held on 8 January 2015 was 'relatively peaceful'. The election saw Maithripala Sirisena defeat President Mahinda Rajapaksa winning 51.3 per cent of the vote, with a historically high voter turnout of 81.5 per cent. The Tamil vote was reported to be significant in Sirisena's victory. Sirisena campaigned on a platform of democratic reform, good governance and anti-corruption. A relatively peaceful parliamentary election on 17 August 2015 ushered in a 'national unity government' of major parties. The Tamil National Alliance (TNA) now formally leads the opposition. The parliamentary election was described by the Commonwealth Observer Group as credible, and meeting the key criteria for democratic elections, with an outcome that reflected the will of the people.

(footnotes omitted)

12    Having referred to the passage of time since the 2012 UNHCR guidelines, the Authority then noted reports from DFAT (2017), the United Kingdom Home Office (2016 and 2017) and the United States Department of State (2016) which provided information to the effect that past membership or connection to the LTTE would be insufficient to warrant international protection unless the person was perceived to be a threat to the State. These reports are addressed in more detail below.

13    The Authority found that a person with the first appellant's profile may be subject to monitoring and harassment in Sri Lanka, but that he would not face a real chance of being subject to serious harm now because of his ethnicity or any imputed political opinion.

14    Importantly, the Authority said:

37.    Given the changed circumstances in Sri Lanka since the applicant's departure, the length of time that has passed since the applicant's family members were involved with the LTTE, the length of time that the applicant has lived in Tamil Nadu, India, and the fact that he was a ten year old child when he left Sri Lanka and has never returned there since that time, I am satisfied that the chance of the applicant facing harm in Sri Lanka because of family links with the LTTE or because of being imputed with an anti-government political opinion or imputed to be an LTTE supporter is very remote. I find that the applicant's fears of persecution in this regard are not well-founded.

15    Having considered the appellants' claims individually and cumulatively, the Authority concluded that the appellants did not meet the requirements of a refugee under s 5H(1) of the Migration Act 1958 (Cth) and was not eligible for protection under s 36(2)(a). For similar reasons, it concluded that they did not meet the requirements of the complementary protection assessment under s 36(2)(aa).

Before the Federal Circuit Court

16    The appellants raised a single ground of appeal before the Federal Circuit Court. It read as follows:

The Immigration Assessment Authority erred by failing to consider the integers of the Applicant's claims arising from his father and aunty being considered 'un-acquitted suspects' who would be 'of significant adverse interest to the authorities' upon any return to his home country.

17    The primary judge considered the claim arising from the first appellant's aunt separately to that arising from his father. His Honour found that the claim before the Authority did not include any reference to the first appellant's aunt as an un-acquitted suspect and so such a claim could not be said to either have been expressly made or to arise clearly on the materials before the Authority. That finding is not the subject of appeal.

18    As to the claim arising from the position of the first appellant's father, the primary judge considered that the Authority's reasons, read as a whole, demonstrate that the Authority had considered all of the first appellant's claims relating to his family's ties to the LTTE, including the claim that the first appellant's father was an un-acquitted suspect. The primary judge stated:

[40]    The Court is not satisfied that there is sufficient evidence that the decision maker here did not engage in an 'active intellectual process' when addressing the first applicant's claim that he would face harm as a result of his father being considered an 'un-acquitted suspect': Carrascalao at [47]. In the material before the IAA, the first applicant claimed that he feared harm if he was forced to return to Sri Lanka because of his father's, aunt's and uncles' involvement with the LTTE. That involvement included various historical activities with the LTTE, not limited to his father's potential status as an 'un-acquitted suspect'.

[41]    This is not a case where the IAA has failed to mention the first applicant's claims in its reasons. Rather, the reasons read as a whole demonstrate that all of the first applicant's claims relating to his family member's ties to the LTTE were considered. It is this Court's view that the IAA took a holistic approach in dealing with these claims and ultimately made a finding that was at a higher level of generality. The Court is therefore satisfied that the IAA was well aware of the first applicant's claim that his father would be considered an 'un-acquitted suspect', it made findings about the factual basis for that claim (CB 288-289 at [21]-[23]), accepted it as a possibility (CB 289 at [23]-[24]) and, by making a finding in relation to the first applicant's 'family links to the LTTE' (CB 291 at [37]), effectively dealt with it: Applicant WAEE.

19    The primary judge dismissed the application.

Ground of appeal before this Court

20    As noted, the appellants rely on a single ground of appeal, being that the primary judge erred in failing to find that the Authority failed to consider the integer of the Applicant's claim that his father was an 'un-acquitted suspect'.

Principles

21    The principles were not in issue.

22    The Authority must conduct a review under s 473CC by considering the review material provided to it: s 473DB(1). The review is a de novo consideration of the merits of the decision, and the Authority must consider the application for a protection visa afresh: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17].

23    The consideration which the Authority must give to the review material must be a real consideration in the sense described in cases such as Tickner v Chapman (1995) 57 FCR 451 and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [36]-[47].

24    In certain circumstances, a failure by a tribunal or primary decision-maker to evaluate a submission of substance which was clearly articulated might amount to jurisdictional error. That conclusion would be appropriate, for example, if the failure amounted to a constructive failure to exercise jurisdiction. The critical questions, before determining whether any such failure amounts to a jurisdictional error, are to identify: (a) whether a submission of substance was clearly articulated; and (b) whether there was a failure by the tribunal to evaluate that submission: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 at [75]-[82].

25    However, it is generally not essential for a tribunal or other primary decision‐maker to refer to every piece of evidence or contention advanced by a claimant. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Full Court said:

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

26    A finding that a decision-maker has not engaged in the intellectual process required will not be lightly made and must be supported by clear evidence: Carascalao at [48].

Summary of appellants' submission

27    The first appellant submitted that the claim to fear harm because his father was an un-acquitted suspect was a claim independent of any claims relating to his father's involvement in the LTTE. The claim arose because his father was detained for five days and then illegally escaped from government-ordered detention.

28    It was submitted that country information that recognised that the position had improved for those Tamil returnees with actual or impugned LTTE connections in recent years was not to the point. Rather, the appellants submitted, there was particular country information by way of the UK Bar Report of March 2014 (Bar report) that addressed the position of likely un-acquitted suspects such as the first appellant's father and in a manner that did not require connection to an LTTE connected claim, and was to the effect that a person recorded as having paid a bribe to secure release from detention would be of significant adverse interest to the authorities (see paras 21 and 22 of the Authority's reasons included above). The first appellant submitted on the basis of the Bar report that such adverse interest was ongoing, and there was no suggestion that the risk was reduced because of the effluxion of time.

29    The first appellant contends that the claim was clearly made as a separate claim to fear harm. He contends that it appears under a separate heading in his post-hearing submissions (the 'Client's profile' heading reproduced at [7] above) and arises from different country information to that relating to links to the LTTE.

Consideration

30    According to the first appellant's statutory declaration, during his abduction the father was interrogated about recruiting fighters for the LTTE and transporting LTTE weapons. It is apparent that the father's detention resulted from his involvement with the LTTE and his escape from that detention is therefore closely related to that issue.

31    In my view the claim as enunciated in the submission did not clearly distinguish a separate claim by the first appellant based solely on his connection with an unresolved un-acquitted suspect from a claim based on his father's LTTE links generally. The former was said to give rise to a fear of questioning about his father's past and present activities, and the activities to which the first appellant refers must sensibly in context be activities relating to the LTTE. The information under the separate 'Client's profile' heading refers to a range of matters, being his father's LTTE involvement, his father's status as an un-acquitted suspect and his aunt's LTTE involvement.

32    There is no doubt that the Authority considered the claim relating to the father as an un-acquitted suspect. The Authority dealt with it as part of the overarching claim that the first appellant feared harm as a result of family connections to the LTTE. It accepted that the first appellant's father was an LTTE supporter and provided the LTTE with material assistance (at para 17). It accepted the first appellant's father was abducted, detained and interrogated by the Sri Lankan Army in 1990 during the war, and was released after five days and after payment of a bribe (at para 20). It accepted that, as the first appellant's father was detained and interrogated, it was reasonable to assume that the Sri Lankan authorities suspected him of involvement with the LTTE (at para 17).

33    The father's status as a potential un-acquitted suspect is referred to throughout paras 21 to 24. That status is expressly one of the factors that lead to the Authority forming the view that the first appellant had family links with the LTTE (at para 24). It is clear that in paras 21 to 24 the Authority considered the first appellant's claim for the purpose of considering the extent to which he faces a risk of harm in the face of relevant country information.

34    The Authority then considered those parts of country information that identified persons who were at risk upon return to Sri Lanka.

35    The country information to which the Authority referred included the Bar report.

36    However the Authority then considered more recent country information and identified those persons at risk of harm identified by that more recent information.

37    It first noted that the 2012 UNHCR guidelines identified a person with family links to the LTTE as falling within a category of people who may warrant international protection.

38    However, the Authority then noted that those guidelines are more than five years old and turned to country information that post-dated the presidential election of 8 January 2015. It noted that the change of government brought about significant changes in terms of human rights and reconciliation and that a number of confidence building measures had been implemented to address grievances of the Tamil community.

39    The Authority noted the 2016 UK Home Office Report which stated that a person who evidences past membership or connection to the LTTE would not warrant international protection unless they have or are perceived to have had a significant role in it or if they are or are perceived to be active in post-conflict Tamil separatism and thus a threat to the State.

40    The Authority referred to the 2017 DFAT Report which noted that the security situation in the north and east has greatly improved and that monitoring and harassment of Tamils has decreased under the Sirisena Government.

41    It acknowledged that DFAT cannot verify reports where close relatives claim to have been arrested and detained because of their family connection with former LTTE members and referred to the DFAT statement that close relatives of high profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring.

42    It noted the United States Department of State Report of 2016 which referred to reports that Tamils throughout the country, but especially in the north and east, reported security forces regularly monitor or harass members of their community.

43    The Authority then concluded its review of the country information by stating:

32.    In my assessment, the country information indicates that a person with the applicant's profile may be subject to monitoring and harassment in Sri Lanka. Given the country information and the fact that the applicant left Sri Lanka when he was ten years old and has not returned there since that time I am satisfied that the applicant's profile is not such that he faces a real chance of being subjected to serious harm now and in the foreseeable future in Sri Lanka because of his Tamil ethnicity (race) or imputed anti-government or pro-LTTE political opinion.

44    The Authority also had regard to the fact that the first appellant had resided in India, and noted that the DFAT 2017 Report indicated that ex-LTTE members returning from India would likely be subject to monitoring.

45    Therefore, it is apparent that the Authority preferred the more recent information to that which preceded the change of government (such as the Bar report). Taking into account the reference to updated country information and the focus on the identification of the persons who may be at risk in the more recent reports, I do not accept the appellants' submission that there was no appropriate weighing of the country information. It is true that the Authority does not specify that it is 'weighing' the information but the reasons reflect such a task was undertaken. The more recent post change of government information was preferred. The Authority identified that the risk revealed by such materials was the risk of monitoring and harassment. The choice of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13].

46    The appellants submit that the focus on the effluxion of time since the first appellant resided in Sri Lanka (leaving at 10 years of age for India) and since the events involving his father (some 27 years previously) fails to allow for the Bar report reference to a process of recording a person as an un-acquitted suspect, a record that endures. However, as noted, the Bar report preceded the change of government and no error is disclosed by the Authority's focus on changed circumstances as disclosed by the country information and on its identification of the reduced risk of harm now faced even by those with a profile that includes being a close relative of a high profile LTTE member who remains wanted.

47    Taking into account those matters, I accept that the Authority did not assess the real chance of being subjected to serious harm on the discrete basis of a family connection with a person who may be recorded as an un-acquitted suspect. However, it considered that integer as part of its overall assessment of the first appellant's risk profile and it also considered and identified those persons who on the basis of relevant and recent country information might face a real chance of serious harm or persecution. It then identified the risk that might be faced by someone with the first appellant's profile, finding that he may be subject to monitoring and harassment. I do not consider the approach and reasoning of the Authority reveals jurisdictional error. I consider that it discharged its statutory task.

48    In my view the primary judge was correct to identify that the claim relating to a connection with his father as an un-acquitted suspect was considered and was subsumed in the broader claim of familial links to the LTTE. No error is disclosed in the primary judge's reasoning and it follows that the appeal must be dismissed and costs should follow the event.

Associate:

Dated:    20 August 2019