FEDERAL COURT OF AUSTRALIA

DTV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1430

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals a decision of the Federal Circuit Court dated 1 April 2019 by which his application for judicial review of a decision of the Immigration Assessment Authority was dismissed. The Authority had affirmed a decision of a delegate of the first respondent (the Minister) not to grant to the appellant a Safe Haven Enterprise visa.

Background

2    The appellant is a Sri Lankan citizen who is a Hindu of Tamil ethnicity. He travelled to Australia by boat and arrived in September 2012.

3    In October 2013, the appellant made an application for a protection visa, which was treated as invalid. Subsequently, in February 2016 the appellant applied for a Safe Haven Enterprise visa, which was accepted as being a valid application. On 22 November 2016, a delegate of the Minister rejected the appellant’s application. That decision was treated as a “fast track reviewable decision” for the purposes of Part 7AA of the Migration Act 1958 (Cth), and was referred to the Authority under s 473CA of the Act. The Authority was not satisfied that the appellant met the criteria for the grant of a protection visa in s 36(2) of the Act, and on 28 June 2017, the Authority affirmed the delegate’s decision.

4    In support of his application for a protection visa the appellant claimed that his uncle was a leader in the Liberation Tamil Tigers of Eelam (LTTE), and that his aunt died in 2001 fighting as a member of the LTTE. Towards the end of the war in Sri Lanka in 2009, the appellant’s family was displaced from their home which was in the northern part of the country. They were taken to a Sri Lankan government camp in Vavuniya. The appellant claimed that at the camp he was interrogated by members of the Criminal Investigation Department (CID), who alleged that the appellant’s family were members of the LTTE because his uncle was an LTTE member. The appellant claimed that he denied being an LTTE member and that his uncle had helped him and his brother to avoid conscription. The appellant claimed that his father was also interrogated in the camp, and was told by CID officers that his four sons were all LTTE supporters.

5    The appellant claimed that he and his family were released from the camp in December 2009 and returned to their village, where there was a large CID presence. After the appellant and his family returned to their village, the appellant’s uncle was released from prison and came to live with his family. The appellant claimed that members of the CID attended their house every day to ask information of his uncle, and that they started to harass the appellant and to ask him questions. The appellant claimed that the CID would often be waiting for him when he returned home from school, and that he was twice forced to attend their offices for questioning. He claimed that he was told by the CID to tell the truth about whether he was in the LTTE. However, the CID then stopped asking him that question and started to ask the appellant to give them information about members of the LTTE. The appellant claimed this affected his schooling. The appellant claimed that he believed that he would one day be taken in for interrogation and killed, which was the reason he decided to come to Australia. The appellant also claimed that his brother was continually harassed by the CID and that in July 2012 his brother was caught trying to escape Sri Lanka and was placed in jail. The following month, the appellant left Sri Lanka.

6    The appellant claimed that if he returned to Sri Lanka, the Sri Lankan authorities would organise for him to be killed. He claimed that if he returned, the authorities will accuse him of departing because he was an LTTE member. He claimed that since his departure from the country, the authorities had visited his parents’ house and demanded that his brother’s passport be handed over or his brother would be shot. He also claimed that the authorities had jailed and tortured his father as a result of the appellant’s departure from Sri Lanka and that his father was released with reporting conditions in June 2016 upon money being paid in support of bail. The appellant claimed that as he feared harm from the CID and the Sri Lankan government, that there was no safe place for him in Sri Lanka. In a written submission made with his 2013 visa application the appellant claimed to fear harm by reason of –

(1)    his Tamil ethnicity;

(2)    his actual or imputed political opinion including of being a perceived sympathiser or supporter of the LTTE or as someone seen to hold Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka; and

(3)    his status as a failed asylum seeker.

The Authority’s decision

7    The Authority accepted the appellant’s claims about the involvement of his uncle and his aunt with the LTTE. The Authority also accepted that the appellant and his family had been detained in a camp where they were subjected to questioning about LTTE involvement, that they were released in 2009, that the appellant’s uncle had later come to live with them, and that the CID regularly visited their house to question his uncle. The Authority accepted that the appellant and his brother were subjected to regular questioning and were frequently harassed and threatened by the CID after they were released from the camp. The Authority accepted the appellant’s claim that he was questioned at home frequently, and that he was twice taken to the CID’s offices for questioning. The Authority also accepted that the appellant’s brother had been caught trying to leave the country and had been detained.

8    However, the Authority did not accept that the appellant was suspected by the authorities of having been in the LTTE, other than during the initial investigation at the camp in 2009. This was because the appellant was released from the camp with the rest of his family, indicating that neither he nor the other members of his family was suspected of being a member or supporter of the LTTE at the time of their release. The Authority also relied on evidence that the appellant gave at his Safe Haven Enterprise Visa interview, where he stated that when he was taken in to the CID offices for questioning on the second occasion they told him, “it doesn’t matter if you’re not LTTE” but asked him to identify people who were. The Authority considered this suggested that the appellant was not in the LTTE, and that the questioning occurred because of the CID’s interest in the appellant’s uncle, and was intended to obtain information about possible associates of his uncle.

9    The Authority did not accept that the appellant’s father had been jailed in 2015 for reasons that included inconsistencies in the evidence that was presented in support of that claim.

10    The Authority referred to new information from the Department of Foreign Affairs and Trade (DFAT) in a report published on 24 January 2017, indicating that the political environment in Sri Lanka had undergone significant change since the end of the conflict in 2009 and the election of the Siresena government in 2015. The appellant was afforded the opportunity to respond to this new information. The Authority stated that the country information indicated that the focus of the authorities in Sri Lanka had shifted since the end of the war, and was now on identifying persons perceived to be working towards post-conflict Tamil separatism within the diaspora or towards a renewal of hostilities. The Authority noted that recent information indicated that violence was then only being carried out against known former LTTE members and not against Tamils generally. The Authority considered that the material did not support a conclusion that Tamils, young Tamil men from formerly LTTE-controlled areas of the north of Sri Lanka, or even such persons with past connections to the LTTE faced a real chance of serious harm at the hands of the Sri Lankan authorities, their associates, or the Sinhalese community in Sri Lanka more broadly.

11    The Authority found that there was no suspicion over the appellant personally at the time of his departure, that a further four years had passed, and that the country information suggested a shift in the focus of the Sri Lankan authorities. On that information, the Authority accepted that the Sri Lankan authorities may continue to retain an interest in the appellant’s uncle and because of this, the appellant’s family members including the appellant might also be subject to monitoring and harassment. However, the Authority stated that the appellant had been questioned and harassed in the past, and that on his descriptions of this treatment it was not satisfied that it was at a level that amounted to serious harm. The Authority also stated that although it accepted that the questioning and harassment caused the appellant to fear more serious harm, no such harm eventuated.

12    The Authority assessed the appellant’s claims to fear adverse treatment on his return as a failed asylum seeker in the context of recent country information from DFAT. The Authority was not satisfied that the fact of having left Sri Lanka and claimed asylum abroad would lead to an imputation that the appellant was a sympathiser or supporter of the LTTE, and therefore give rise to a real chance of his being harmed. While there was some chance that the appellant would be subject to adverse treatment upon his return, the Authority relied on the country information and concluded that the chances of this were relatively low. The Authority found that the appellant’s chances of being subject to adverse treatment were not raised due to any connection with the LTTE, as he had not been of interest to authorities prior to his departure.

13    The Authority found that there was not a real chance of the appellant being tortured or subjected to ill-treatment as a result of having left the country illegally, and would not be treated differently by authorities as a result of his ethnicity. The Authority found that the treatment of the appellant upon his return would not amount to serious harm, though he might be briefly detained while awaiting a court hearing.

The application to the Federal Circuit Court

14    The appellant applied to the Federal Circuit Court seeking judicial review of the Authority’s decision in the exercise of that Court’s jurisdiction conferred by s 476 of the Migration Act. The appellant was represented by counsel at the hearing of the application before the primary judge. The appellant relied upon two of three grounds of review alleged in his amended application. The two grounds upon which the appellant relied were as follows –

(1)    The [Authority] made jurisdictional error in that the [Authority] made a finding at CB469[14] that it does not accept that CID held any ongoing interest or suspicion that the applicant himself was a supporter of the LTTE, and (i) that finding was not open on the evidence or (ii) it was unreasonable to make such a finding.

Particulars

(a)    At 469[13] the [Authority] made a finding that because he was not detained or sent for rehabilitation, but released from the camp along with the rest of the family, indicated that neither he nor the family members were suspected of being members or supporters of the LTTE by the time of their release;

(b)    The [Authority] supported that with the country information it cited at Foot Note 5. The first cited document – Human Rights Watch, “legal Limbo – The uncertain fate of detained suspects in Sri Lanka”, 1 January 2010, CIS18222, says those 11,000 in rehabilitation were suspected members and not supporters. So because the applicant was not part of those does not mean he was not considered a supporter;

(c)    The [Authority] also made the same erroneous finding on CB470[14] in that even if they did not suspect him not to be a member of LTTE he would have been suspected of being a supporter of LTTE;

(d)    The [Authority] made a finding at CB469[11] that the CID (Criminal Investigation Department) harassed the applicant and his brother;

   (e)    That the applicant was questioned at home frequently;

   (f)    That he was twice taken to the CID office for questioning;

(g)    See [19] for his claim & [20] he was closely related to former LTTE combatants; and

(h)    The CID would not have gone to this extent of showing interest in the applicant if they did not suspect that he was at least a supporter of the LTTE.

…

(3)    The [Authority] made two jurisdictional errors in the way it dealt with the question of whether the applicant was subject to serious harm in Sri Lanka

Particulars

(a)    It mis-apprehended and misapplied s5J(5)(a), (b) and (c). The [Authority] accepted at CB473[27] that the questioning and harassment caused the applicant to fear more serious harm, that was sufficient to meet the requirements for the subsections. Further repeat the particulars of the particulars of Ground (1)(a), (b) & (c) above; and

(b)    [The Authority] misapplied the test for well-founded fear. By saying that “no such harm eventuated” it was not considering “a reasonably foreseeable future” but was looking for “short term future” as the test requires – see SZGHS.

15    The first ground was directed to [13] and [14] of the Authority’s reasons. I shall set out those paragraphs of the Authority’s reasons, together with [11] for context –

11.    I similarly accept that after his uncle came to live with them, the CID regularly visited the house to question the uncle. Country information confirms that rehabilitated persons are kept under surveillance for years after their release and frequently harassed and threatened, and are subject to reporting requirements. In this context, I accept that the CID harassed the applicant and his brother, that the applicant was questioned at home frequently, and that he was twice taken to the CID office for questioning. The applicant has been consistent and I find all this plausible in the context of the family’s connections to the LTTE and the post-war environment.

…

13.    However, I do not accept that the applicant was suspected by the authorities of having been in the LTTE, other than during the initial investigation at the camp. At checkpoints and also in the camps, the authorities separated certain individuals from their families, presumably because of alleged LTTE ties, and sent them to rehabilitation. As at December 2009, when the applicant was released, there were some 11,000 such persons in rehabilitation. The applicant’s evidence is that he was interrogated and investigated. However, he was not detained or sent for rehabilitation, but released from the camp along with the rest of his family, indicating that neither he nor the other family members were suspected of being members or supporters of the LTTE by the time of their release.

14.    Furthermore, the applicant said at the SHEV interview that when he was taken by the CID for questioning after returning to Kilinochchi, he was questioned on one occasion about whether he supported the LTTE, but on the second occasion they told him ‘it doesn’t matter if you’re not LTTE’ but asked him to identify people who were. This suggests that the authorities were aware the applicant had not been in the LTTE. I find the questioning was because of their interest in his uncle and was intended to obtain information about possible associates of the uncle. Beyond this, I do not accept that the CID held any ongoing interest or suspicion that the applicant himself was a member or supporter of the LTTE. Nor do I accept that the applicant was physically mistreated during any of these incidents. While he said in his biodata interview that he had been beaten, his evidence at the SHEV interview that he was threatened in the camp but not hit.

(footnotes omitted)

16    The primary judge captured the appellant’s first ground at [29] of his Honour’s reasons as being, “In substance, the argument of the Applicant is that at the time that the Applicant was interrogated by the CID they were looking for “members” of the LTTE and not also looking for supporters”. The appellant argued before the primary judge that it was not open to the Authority to conclude that the CID had no ongoing interest in the appellant or suspicion that the appellant himself was a supporter of the LTTE, as it had made findings that the appellant fell within the risk profile of someone with family links to the LTTE. Before the primary judge, counsel for the appellant relied on [23] and [24] of the Authority’s reasons, where the Authority referred to country information that referred to reports of abductions, torture, and the use of excessive force against Tamils perceived to support the LTTE, although in lower numbers than had previously been the case.

17    The primary judge rejected the appellant’s first ground of review. His Honour considered that the appellant’s argument ignored the clear words in [13] and [14] of the Authority’s reasons, which referred to members and also to supporters. His Honour held at [30] –

It does not appear to me to be illogical or unreasonable for the [Authority] to have concluded that the Applicant was not of ongoing interest to the CID in the circumstances that the [Authority] sets out, importantly, that he was not detained or sent for rehabilitation, but simply released from the camp with the rest of his family. To attempt to draw the subtle distinction between members of the LTTE and supporters is an argument that could be put to a decision-maker, but not so overwhelming in the context of this case as to show that the findings the [Authority] made were either illogical or not reasonably open to them. I am not persuaded that the Applicant has established a ground for judicial review in this respect.

18    The appellant’s other ground, which was ground (3) before the primary judge, was that the Authority had made jurisdictional errors in the way it dealt with the question whether the appellant would be subject to serious harm upon his return to Sri Lanka. The appellant submitted to the primary judge that the Authority had misapplied the test for a well-founded fear of persecution by considering only the short term potential harm to the appellant. The appellant relied before the primary judge on the decision of Allsop J in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572, where at [2] his Honour found that the reasons of the Refugee Review Tribunal in that case demonstrated that it had failed to assess the appellant’s claims to have a well-founded fear of persecution by reference to the possibilities of future persecution, and to the reasonably foreseeable and not merely the immediate future. The primary judge rejected this argument, holding that the Authority did not fail to consider the future. His Honour held that acts of past harassment and the threats of future conduct are evidence from which one must assess whether or not the appellant was at real risk of serious harm in the future, and that it was not an error of reasoning for the Authority to assess past events as a significant part of the process to assess the risk to the appellant in the future.

19    Finally, the primary judge accepted a submission by the Minister that there was no argument put to the delegate or the Authority that the appellant’s psychological experience, as distinct from the potential effects of the threats being carried out, was a part of his protection claim.

The grounds of appeal to this Court

20    The appellant’s notice of appeal contains two grounds of appeal, supported by particulars. The two grounds correspond to the two grounds of review that were argued before the primary judge. The two grounds of appeal are as follows –

(1)    The learned primary judge erred by not finding that the [Authority] made jurisdictional error at CB469[14] by not accepting that the CID held ongoing interest or suspicion that the applicant was a supporter of the LTTE. His Honour should have found that (i) the finding by the [Authority] was not open on the evidence and/or (ii) it was unreasonable for the [Authority] to make that finding.

Particulars

(a)    The appellant’s case is that although he was not perceived by the CID (Criminal Investigation Department) as an LTTE member, he was perceived as an LTTE supporter and country information shows that there are continued reports of abductions, torture and use of excessive force against Tamils perceived to support the LTTE.

(b)    At 469[13] the [Authority] had made a finding that although 11,000 people were detained and sent for rehabilitation at the end of the war, the appellant was released from the camp along with the rest of the family, therefore neither he nor the other family members were suspected of being members or supporters of the LTTE by the time of their release.

(c)    The [Authority] supported that finding with the country information it cited at Foot Note 5. However, the first cited document - Human Rights Watch, "Legal Limbo - The uncertain fate of detained suspects in Sri Lanka", 1 January 2010, CIS18222, says those 11,000 in rehabilitation were suspected members who participated in the insurgency, and by implication not just supporters. Therefore, because the fact that applicant was not part of those 11,000 did not mean he was not considered a supporter.

(d)    The [Authority] also made the same erroneous finding at CB470[14] in that even if the CID did not suspect him to be a member of LTTE they would have suspected him of being a supporter of LTTE.

(e)    The [Authority] made a finding at CB469[11] that the CID harassed the applicant and his brother. That the applicant was questioned at home frequently. That he was twice taken to the CID office for questioning. The CID would not have gone to this extent of showing interest in the applicant if they did not suspect that he was at least a supporter of the LTTE.

(f)    At [28] the learned primary judge erred because the information set out at [27] establishes that the 11,000 sent for rehabilitation were member of the LTTE and not supporters. That supports a clear distinction being drawn between members of the LTTE and the supporters of the LTTE. It is not just a background material.

(g)    His Honour also erred at [29] by stating that at [13] & [14] of its decision the [Authority] referred not only to members but to supporters, but his Honour failed to deal with the context in which the [Authority] referred to the supporters. The context in which it was referred to was that because he was not part of the 11,000 sent for rehabilitation he was not considered a supporter which is the main point of contention between the parties.

(h)    Further his Honour erred at [30] by stating that the distinction between a member of the LTTE and a supporter of LTTE is only a subtle distinction.

(2)    The learned primary judge erred by not finding that the [Authority] made two jurisdictional errors in the way it dealt with the question of whether the appellant was subject to serious harm in Sri Lanka

Particulars

(a)    The [Authority] accepted at CB473[27] that the questioning and harassment the appellant encountered caused the appellant to fear more serious harm. If the appellant feared more serious harm, that was sufficient to meet the requirement of well-founded fear and the [Authority] should have found so.

(b)    The [Authority] also misapplied the test for well-founded fear in a different manner. By finding that "no such harm eventuated" within a limited period, it was not considering "a reasonably foreseeable future" as the test requires as found in SZGHS, but considering only a "short term future".

(c)    His Honour erred at [33] by not answering the question that he posed there. But at [35] his Honour referred to the argument of the Minister that the appellant's psychological experience was not part of the claim, as if it was the answer. However, the concept of well-founded fear looks primarily at the fear and which is the psychological experience of fear and therefore there was no need to claim that separately.

(d)    His Honour erred at [36] in that there is no dispute about the [Authority] considering the past events to assess the risk to the appellant. The complaint is about restricting it to the immediate future by saying that no harm eventuated until he left, but by failing to consider what would have happened in the reasonably foreseeable if he has stayed.

(e)    His Honour misunderstood the impact of SZGHS because the general principle that came out of that case was that the Tribunal should look at reasonably foreseeable future and not restrict itself to a short-term future. There could be many different circumstances in which the reasonably foreseeable future may differ from a short term future, but that did not change the general principle.

21    The appellant seeks that the orders of the primary judge be set aside and that in lieu it be ordered that the decision of the Authority be set aside and the matter be remitted to it for determination according to law.

The first ground of appeal

22    In support of the first ground of appeal, the appellant drew a distinction between a supporter of the LTTE and a member of the LTTE. The appellant submitted that the primary judge erred in not holding that the Authority had made a jurisdictional error by not finding that that the CID had an ongoing interest or held an ongoing suspicion that the appellant was a supporter of the LTTE. Alternatively, the appellant submitted that the primary judge should have found that the finding by the Authority that it did not accept that the CID held any ongoing interest or suspicion that the appellant himself was a member or supporter of the LTTE, was not open on the evidence, or that it was unreasonable to make that finding.

23    The appellant submitted that the Authority made two erroneous findings. The first was a finding attributed to the Authority at [13] of its reasons which the appellant submitted was that –

…the appellant was released from the camp along with the rest of the family, therefore neither he nor the other family members were suspected of being members or supporters of the LTTE by the time of their release.

24    Counsel for the appellant emphasised that [13] of the Authority’s reasons had to be read having regard to the findings at [11], which I have set out at [15] above. The appellant submitted that at [13] of its reasons the Authority had commenced by addressing whether the Sri Lankan authorities suspected the appellant of having been “in” the LTTE, which the appellant submitted was to be equated with membership of the LTTE. The appellant submitted that the reference at [13] of the Authority’s reasons to individuals with “alleged ties” to the LTTE was not clear, but that in context it referred to people who had been sent to rehabilitation. The appellant submitted that those who were sent to rehabilitation were members of the LTTE. The appellant supported these submissions by reference to three extracts from the country information that the Authority cited in a footnote to [13] of its reasons. Those extracts were from a Human Rights Watch report titled “Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka” dated February 2010, which report was in evidence before the Federal Circuit Court. The extracts upon which the appellant relied were as follows –

The Sri Lankan government is currently detaining at least 11,000 people, including more than 550 children, in so-called “rehabilitation centers”. These individuals, said to be associated with the separatist Liberation Tigers of Tamil Eelam (LTTE), were among the almost 300,000 displaced persons confined in detention camps in the final months of the armed conflict with the LTTE.

…

It is unclear whether any of the 11,000 detainees have been formally charged with any crimes and what acts these individuals have committed that led to their detention. In December, 2009, one government minister said that only 200 of the 11,000 detainees will be charged with a crime and that the vast majority of the detainees were forced to fight by the LTTE.

…

The government argues that the detainees are “surrendees” under the Sri Lankan emergency laws that permit the government to hold without charge or trial individuals for up to two years. It claims that the 11,000 detainees acknowledged that they had participated in the insurgency and effectively turned themselves in.

(emphasis added in the appellant’s written submissions)

25    The appellant submitted that the report indicated that the Sri Lankan government position on the detainees was that they were ‘participa(nts) in the insurgency’. The appellant submitted that as such, no inference could be made about those that were not involved in, but were only suspected of supporting the LTTE.

26    The primary judge, at [28] of his Honour’s reasons, found that the country information from the Human Rights Watch report did not appear to indicate any error in the reasoning process of the Authority, but was simply further background material about the state of affairs in Sri Lanka.

27    At the end of [13] of its reasons, the Authority concluded by stating that the release of the appellant and his family from the camp indicated that they were not suspected of being members or supporters of the LTTE by the time of their release. The appellant submitted that the fact that the appellant was not detained shows that he was not considered to be a member of the LTTE, in the sense of one who took up arms, but it did not show that the appellant was not considered to be a supporter of the LTTE.

28    The second finding of the Authority that the appellant challenged was the finding at [14] of the Authority’s reasons, which is set out at [15] above. The impugned finding is that the Authority did not accept “that the CID held any ongoing interest or suspicion that the applicant himself was a member or supporter of the LTTE”. The appellant submitted that this finding was erroneous to the extent that it extended to the appellant being a supporter of the LTTE. Counsel for the appellant advanced five arguments to support his submission that this finding was erroneous –

(1)    The Authority did not at [14] of its reasons consider the interactions between the appellant and the CID in the context of the earlier findings at [11], where the Authority accepted that the CID had harassed the appellant and his brother, that the appellant had been questioned at home frequently, and that he was twice taken to the CID office for questioning.

(2)    At [14] the Authority referred to evidence of the appellant at his interview where he stated that on one of the occasions when he was taken in for questioning by the CID, he was questioned about whether he supported the LTTE, which the appellant submitted suggested that the CID had a suspicion about him at that time.

(3)    As to the second occasion on which the appellant was taken in for questioning by the CID which was referred to by the Authority at [14] of its reasons, when the appellant was told, “it doesn’t matter if you’re not LTTE” but was asked to specify people who were, the appellant submitted that this did not support the Authority’s finding, because in the appellant’s submission the statement was directed to whether the appellant was a member of the LTTE, and not to whether he was a supporter.

(4)    Counsel for the appellant submitted that because the appellant’s uncle was an ex-LTTE leader and had been living at his house, and because the appellant’s aunt had died fighting for the LTTE, and considering his overall family background, and the way the CID was dealing with the family members it would have been obvious that the CID believed that the appellant and his family supported the LTTE.

(5)    It would have been obvious that the appellant was subjected to the overall treatment to which he was subjected because the CID suspected him to be at least a supporter of the LTTE.

29    Counsel for the appellant submitted that the primary judge at [29] of his Honour’s reasons mischaracterised the case that the appellant had put. At [29] his Honour stated –

In substance, the argument of the Applicant is that at the time that the Applicant was interrogated by the CID they were looking for “members” of the LTTE and not also looking for supporters. On this case, it is said that the [Authority] failed to properly consider the case; however, this ignores the clear words of the [Authority] in paragraphs 13 and 14 where it refers not only to members, but also to supporters.

30    Counsel for the appellant submitted that his argument below was not that at the time that the appellant was interrogated by the CID they were looking for “members” of the LTTE and not also looking for “supporters”, but it was that whatever had been said by the CID to the appellant did not suggest that they believed he was not a supporter.

31    Counsel for the appellant also submitted that the primary judge erred at [30] of his Honour’s reasons, which is set out at [17] above, in treating the distinction between membership and support of the LTTE as being a subtle distinction. Counsel submitted that there was a significant difference between an LTTE member who took up arms to fight in the insurgency, and a supporter of the LTTE who without taking up arms may have provided other support.

32    Counsel for the appellant submitted that for the above reasons it was not open to the Authority to find that the CID did not suspect the appellant of being a supporter of the LTTE, and that this was a material error of a jurisdictional nature because the country information established that there was a real chance that a supporter of the LTTE would face significant harm if refouled to Sri Lanka.

33    The appellant’s first ground of appeal alleges defective fact-finding by the Authority in determining whether, in relation to the appellant, one of the criteria for the grant of a protection visa in s 36(2) of the Act was engaged. The appellant alleges that the Authority’s failure to accept that the appellant was of ongoing interest or suspicion as a supporter of the LTTE was not open on the evidence, and was an unreasonable finding. It would appear to be a necessary corollary of the appellant’s case that the Authority was bound to find that he was of ongoing interest or suspicion as a supporter of the LTTE, that is, no other conclusion was legally open to the Authority.

34    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] Crennan and Bell JJ stated –

… “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

35    In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148] Robertson J stated that the ground advanced in that case of engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds was to be taken to refer to –

… extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.

36    The above passage has been referred to with approval in decisions of the Full Court, including ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47], where Griffiths, Perry and Bromwich JJ stated –

Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

37    As to the first finding that the appellant seeks to impugn, namely the finding at [13] of the Authority’s reasons that the release of the appellant and his family indicated that neither he nor the other family members was suspected of being a member or supporter of the LTTE by the time of their release, counsel relied on the three passages from the Human Rights Watch report that are extracted at [24] above. These passages appear in separate paragraphs on pages 1, 3, and 4 of the summary at the commencement of what is a 23 page report. I have considered the whole of the report. The report at different places uses different terms to denote an association between individuals and the LTTE. Those terms have a degree of ambiguity about them. For instance, the third paragraph in the summary of the report stated –

This report is based on interviews with relatives of individuals who have been detained on suspicion of LTTE association.

[emphasis added]

38    The first complete paragraph on page 3 of the report stated –

Both at checkpoints and in the camps, the authorities separated certain individuals from their families – presumably because of alleged ties with the LTTE and sent them to “rehabilitation centers.”

[emphasis added]

39    The Authority referred to the separation of family members because of “alleged ties” at [13] of its reasons.

40    The fourth paragraph on page 4 of the report stated –

… Children who have been connected with the LTTE should not be prosecuted, punished, or threatened with prosecution or punishment solely for their association or membership. Any prosecution for crimes committed by children when they were associated with the LTTE, as well as any detention pending such prosecution, should conform to international juvenile justice standards.

[emphasis added]

41    The report referred in places to the detention of “LTTE suspects”, and in the first paragraph on page 6, which is the commencement of the body of the report, it stated –

According to government statements, the Sri Lankan authorities have detained more than 11,000 people suspected of LTTE involvement from among the people displaced by the conflict. At least 556 of them are children. Security forces detained some of these people immediately after they fled the conflict zone and reached government-controlled areas. Others were taken away from the camps in the ensuing months.

[emphasis added]

42    The last paragraph on page 7 of the report stated –

The authorities have also arrested suspected LTTE supporters from the camps. Initially the majority of camp arrests were conducted by uniformed military personnel. Gradually, however, authorities in civilian clothes, sometimes identifying themselves as being from the police Terrorist Investigation Division (TID) or the Criminal Investigation Department (CID) conducted the arrests. On several occasions, the military or CID rounded up dozens and even hundreds of people and took them away.

[emphasis added]

43    On page 15 of the report, it stated –

The Sri Lankan government has sent mixed messages on the future of LTTE suspects who are detained.

[emphasis added]

44    In the last paragraph on page 22 of the report it stated –

Under Sri Lanka's state of emergency, the government has routinely violated the fundamental human rights of alleged members or supporters of the LTTE in custody. These include the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority (habeas corpus), and the right of access to legal counsel and family members. …

[emphasis added]

45    One of the main themes of the Human Rights Watch report was that many persons who were arrested and detained were not informed of the specific reasons for their arrest or detention. This was set against the background of Sri Lankan laws that were said to authorise the detention of individuals without charge, and which were said to authorise the continuing detention of “surrendees” in rehabilitation centres following the identification of “LTTE ties”.

46    In my view, having regard to the whole of the Human Rights Watch report, there is no clear distinction within the terms of that report to be drawn between a LTTE member and a LTTE supporter in the way submitted on behalf of the appellant. Both terms, together with other terms, are used to describe persons with LTTE associations. As set out at [44] above, the report refers in one place to “alleged members or supporters of the LTTE in custody”.

47    In Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59 at [14] Gleeson CJ observed –

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. …

48    Therefore, an evaluation of the Authority’s reasons at [13] is not to be conducted in isolation from other parts of the reasons. The combined force of the Authority’s reasons are to be considered in evaluating whether the appellant has demonstrated that no reasonable decision-maker could have made the findings that are challenged. The Authority’s finding at [13] was that the appellant’s release from detention, and the fact that he was not sent to rehabilitation, indicated that he was not suspected of being a member or supporter of the LTTE. The Authority considered that indication together with other evidence at [14] before concluding at [27] that there was no suspicion over the appellant at the time of his departure from Sri Lanka. In my view, having regard to [13] and [14] of the Authority’s reasons when read together, and to a review of the whole of the Human Rights Watch report, extracts from which were relied upon by the appellant, it was open to the Authority to find that appellant’s release from custody indicated that neither he nor his family members (which is to be understood as a reference to his immediate family members) were suspected of being members or supporters of the LTTE. The appellant has not demonstrated that this conclusion was the product of illogicality or irrationality such that it was unreasonable to make that finding.

49    The second factual finding of the Authority that is impugned by the appellant under his first ground of appeal is the finding in [14] of the Authority’s reasons that it did not accept “that the CID held any ongoing interest or suspicion that the applicant himself was a member or supporter of the LTTE”. At [28] above, I have summarised the submissions that were made on behalf of the appellant in support of the challenge to this finding. In my view, these submissions seek to cavil with the merits of the Authority’s findings and do not persuade me that the impugned finding is the product of illogicality or irrationality.

50    A key component of the Authority’s reasoning at [14] was its view that the appellant had been questioned by the CID because of its interest in his uncle, whom the appellant had claimed in his visa interview was a “big shot” in the LTTE. The Authority found that the questioning occurred because of the CID’s interest in his uncle, and was intended to obtain information about possible associates of his uncle. It was in that context that the evidence of the appellant that he was told, “it doesn’t matter if you’re not LTTE”, and that he was asked to specify people who were, fell to be evaluated. I do not accept that the Authority was bound to interpret this material in the way submitted on behalf of the appellant, which was that the statement attributed to the CID was directed to whether the appellant was a member of the LTTE, and not to whether he was a supporter. Nor do I accept the submission that it was “obvious” that the appellant was suspected by the CID of at least being a supporter of the LTTE such that no other view of the material before the Authority was reasonably open. Paragraph [14] of the Authority’s reasons is to be evaluated with the reasons as a whole, including the conclusions that the Authority made at [13] relating to the significance of the appellant’s release from detention in 2009.

51    For these reasons, the appellant has not persuaded me that there was any error in the primary judge’s decision to reject the first ground of review before the Federal Circuit Court, or that there was any error in the conclusions at [30] of his Honour’s reasons for decision, which I have set out at [17] above.

The second ground of appeal

52    The second ground of appeal concerns the Authority’s findings at [27] of its reasons –

Turning to the applicant’s particular circumstances, I have found there was no suspicion over him personally at the time of his departure. A further four years has now passed and the country information suggests a shift in the focus of the Sri Lankan authorities. On the above information I accept that the authorities may continue to retain an interest in the applicant’s uncle and because of this, family members including the applicant may also be subject to monitoring and harassment. However, the applicant has been questioned and harassed in the past, and on his descriptions of this treatment I am not satisfied that it was at a level that amounted to serious harm. Although I accept the questioning and harassment caused the applicant to fear more serious harm, no such harm eventuated. …

[emphasis added]

53    It is also necessary to set out what followed at [28] of the Authority’s reasons –

Considering the applicant’s circumstances in light of the country information, I accept that the applicant may again be subject to occasional monitoring, harassment or questioning but find this would be at a lower level and frequency than it was in the post-war period and am not satisfied it amounts to serious harm. Nor am I satisfied on the information that any discrimination the applicant may experience as a Tamil from either the government or society amounts to serious harm. I find the chance of him otherwise being seriously harmed because of his ethnicity, status as a young Tamil male from an LTTE-controlled area in the north, family connections to his uncle, and/or any other imputed LTTE links to be remote. There is not a real chance of the applicant suffering harm for such reasons. I am not satisfied there is a real chance of the applicant being perceived as a sympathiser of the LTTE, to hold Tamil separatist views or views supporting a renewal of hostilities against the Sri Lankan government, or that he will be harmed for such reasons.

54    The appellant submitted that the Authority made two jurisdictional errors in the way it dealt with the question whether the appellant was subject to serious harm in Sri Lanka, and that the primary judge had been in error in failing to so find.

55    The first error alleged by the appellant was that, because the Authority had accepted at [27] (in the sentences that I have emphasised in the passage set out under [52] above) that the questioning and harassment that the appellant had encountered caused the appellant to fear more serious harm, that was sufficient to meet the requirement of a well-founded fear of persecution, and the Authority should have found that the appellant had well-founded fear of persecution at that time. On that premise, the appellant submitted that the Authority could then have considered whether he had a well-founded fear of persecution at the time of making its decision. The appellant submitted that the Authority’s finding necessarily meant the appellant had a well-founded fear of persecution because he feared more serious harm and therefore the Authority had impliedly found that fear of serious harm was insufficient unless there was the serious physical harm. The appellant submitted that the Authority erred because it required that the harm should be physical to meet the well-founded fear and that it was not enough if it is only psychological, that is fear of serious physical harm, citing SBTF v Minister for Immigration & Citizenship [2007] FCA 1816 at [48] and SCAT v Minister for Immigration and Multicultural Affairs [2003] FCA 80; 76 ALD 625.

56    The primary judge at [30] of his Honour’s reasons rejected the appellant’s arguments in relation to this first error, holding that there had been no argument put to the delegate or to the Authority that the appellant’s psychological experience, as distinct from the potential effects of the threats being carried out, was part of his protection claim. The appellant criticised his Honour’s reasons, submitting that his Honour did not directly and adequately respond to the argument of the appellant. The appellant submitted that the concept of well-founded fear of persecution looks primarily at the fear, and that this was a psychological experience of fear, and therefore there was no need to claim that separately.

57    I do not accept the appellant’s submissions in relation to the first error. The statutory issue that the Authority had to consider was whether for the purposes of s 5J of the Act the appellant had a well-founded fear of persecution amounting to serious harm, and not simply a fear. At [27] of its reasons the Authority recorded that it accepted that the questioning and harassment that the appellant experienced in Sri Lanka before he left in August 2012 had caused him to fear more serious harm. In this regard, submissions made on the appellant’s behalf in support of his invalid 2013 application for a visa had stated, “The Applicant left Sri Lanka as he feared one day he would be taken for interrogation and seriously harmed”. The Authority’s finding that no harm eventuated is to be understood in conjunction with what followed at [28]. A material influence on the Authority’s consideration of whether the appellant had a well-founded fear of serious harm was the country information to which it had referred at [21] to [24] and [28] of its reasons. Hence, at [28] the Authority considered “the applicant’s circumstances in light of the country information”. That information led the Authority to accept that the appellant may again be subject to occasional monitoring, or harassment, or questioning, but found that this would be at a lower level and frequency than it had been in the post-war period. The Authority was not satisfied that this would amount to serious harm. That finding contributed to the Authority’s conclusion at [44] that

I have found above that there is not a real chance of the applicant experiencing occasional monitoring, harassment, questioning or discrimination to a level that amounts to serious harm …

58    Further, I am not satisfied that it was an element of the appellant’s claims for protection that if he returned to Sri Lanka he might suffer psychological harm amounting to “serious harm” for the purposes of s 5J of the Act. Apart from reliance on the passage in [27] of the Authority’s reasons, counsel for the appellant did not direct me to any such claim, and no such claim was identified in the submissions made on behalf of the appellant to the primary judge. Nor am I persuaded that any such claim clearly emerges from the materials, applying the guidance of the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18], citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [55] and [68] (Black CJ, French and Selway JJ).

59    Accordingly for the above reasons there was no error in the primary judge’s rejection of the first argument advanced in support of what was ground of review (3) before the Federal Circuit Court.

60    The second argument advanced on behalf of the appellant in support of the second ground of appeal was that the Authority had misapplied the test for determining whether the appellant had a well-founded fear of persecution. The appellant submitted that by finding at [27] that “no such harm eventuated”, within the limited period until the appellant’s departure from Sri Lanka, the Authority had not considered the “reasonably foreseeable future”. The appellant submitted that this was contrary to the test in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [2] (Allsop J, as his Honour then was). The appellant also referred to Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; 133 ALD 495 at [41] (Yates J), which cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (see p 279). The appellant submitted that the Authority restricted the scope of its consideration to the immediate future by finding that no harm eventuated in the period before the appellant left Sri Lanka, and “by failing to consider what would have happened in the reasonably foreseeable future if he had stayed”.

61    In my view, these submissions raise a false issue. The Authority was not required to assess what harm the appellant might have faced had he remained in Sri Lanka. As part of its consideration of whether the appellant had a well-founded fear of persecution and engaged the criteria in s 5J of the Act, the Authority was required to assess, and did assess, whether if the appellant returned to Sri Lanka there was a real chance that he would be persecuted. Having regard to [28] of the Authority’s reasons, there is no question that it addressed whether there was a real chance of serious harm to the appellant in the foreseeable future should he return to Sri Lanka. There is no substance to the appellant’s second argument in support of the second ground of appeal.

Conclusion

62    The appeal will be dismissed with costs.

Associate:

Dated:    2 September 2019