FEDERAL COURT OF AUSTRALIA

CPV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1957

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 8 May 2019, dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 30 April 2018: CPV18 v Minister for Home Affairs & Anor [2019] FCCA 735.

2    The Authority had affirmed a decision of the delegate of the then Minister for Home Affairs made on 13 March 2018 not to grant the appellant a Protection visa subclass XE-790 Safe Haven Enterprise Visa (SHEV).

Background

3    The background facts are set out at [3] to [13] of the primary judge’s reasons. It was not contended that they were incorrectly or insufficiently set out. It is not necessary to repeat them here.

The Authority

4    The Authority’s decision and reasons were summarised by the primary judge at [14] to [20] of his Honour’s reasons. His Honour’s summary of the Authority’s reasons at J[17] to J[18] is relevant to the appeal (footnotes omitted):

[17]    The Authority concluded relevantly that the applicant had been severely ill-treated by the STF and the CID in the past, but that since he had left Sri Lanka there had been significant changes to the country situation in Sri Lanka, including the defeat of the LTTE, and the end of the civil conflict. The Authority referred at [36]-[37] to Department of Foreign Affairs and Trade (DFAT) county information concerning the monitoring and harassment of Tamils in day-to-day life under the Sirisena Government. Further, the Authority referred to information that the LTTE no longer existed in Sri Lanka as an organised force. It noted that DFAT assessed that only high profile individuals with links to the LTTE, and close relatives of high profile former LTTE members, continue to be of interest to the Sri Lankan authorities and might be subjected to monitoring. The Authority concluded in respect of the applicant that none of his close family members were involved with the LTTE, apart from a cousin with whom they lost contact since 1990. The applicant had not claimed that he or any member of his family ever faced any problem due to the cousin’s involvement with the LTTE.

[18]    The Authority concluded that whilst it accepted the applicant had been subjected to mistreatment in the past, and had once been suspected of having LTTE links, it was not satisfied that he had a profile that would attract adverse attention on return. The Authority referred to the applicant’s ability to depart Sri Lanka lawfully in 2000 and noted there was no independent information to suggest that Tamil returnees who had merely sought asylum abroad after having lived abroad for a period of time and who did not otherwise have a profile of interest for political reasons are subject to monitoring, arbitrary arrest or detention for that reason. DFAT assessed the risk of torture or mistreatment for the majority of returnees was low and continues to reduce, including for those suspected of offences under the Sri Lankan immigration law.

The Federal Circuit Court

5    The appellant, who was represented by counsel at the hearing of his judicial review application before the Federal Circuit Court, relied on one ground of review, namely:

The Immigration Assessment Authority (“the IAA”) referred at [37] to country information “that monitoring and harassment of Tamils in day to day life has decreased significantly under the Siresena Government”. The mere fact that such conduct towards Tamils has “decreased significantly” does not mean there is no real chance of Tamils being the subject of such conduct. The IAA, in the course of finding at [48] that it was “not satisfied that the applicant faces a real chance of harm” for various reasons:

a)    failed to consider whether the level and degree of monitoring and harassment experienced by Tamils was sufficient to constitute a real chance of serious harm; or

b)    erred in assuming that a significantly decreased occurrence of monitoring and harassment meant that the applicant did not face a real chance of serious harm as a result of monitoring and harassment.

6    The appellant had contended that, apart from the point raised above, “the Authority’s reasoning otherwise demonstrate[d] a careful and correct analysis of the applicant’s claims”: J[25].

7    Before the primary judge, the appellant submitted that the Authority’s error was either that:

(1)    the Authority failed to consider whether the level and degree of monitoring and harassment experienced by Tamils was sufficient to constitute a real chance of serious harm; or

(2)    the Authority erred in assuming that a significantly decreased occurrence of monitoring and harassment meant that the appellant did not face a real chance of serious harm as a result of the monitoring and harassment.

8    These submissions focussed on the Authority’s reasons at A[37], where the Authority stated (footnotes omitted):

DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. The Sri Lankan police are now responsible for civil affairs across Sri Lanka. While a sizeable and largely idle military presence remains in the north and east, armed forces personnel are generally restricted to their barracks. While some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities. Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015. There are a number of Tamil political parties, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). The TNA currently has 16 members of parliament and holds the majority of seats in the Northern Provincial Council. The TNA leader, Rajavarothiam Sampanthan, is leader of the National Opposition.

9    The primary judge rejected the appellant’s submissions, concluding that the appellant’s challenge disconnected the impugned findings at A[37] from the Authority’s reasons as a whole, and in particular the broader conclusion reached at A[48], which had been based on the Authority’s consideration of the appellant’s claims as a whole, not simply its assessment of the risk of the occurrence of monitoring and harassment: J[37].

10    At A[48], the Authority stated:

Having regard to the applicant’s profile, the passage of time and the change of country situation, I am not satisfied that the applicant faces a real chance of harm as a returning Tamil asylum seeker from Batticoloa, with distant family LTTE links, who was himself formerly suspected of involvement and imprisoned.

11    The primary judge concluded (footnotes omitted, emphasis in original):

[39]    The applicant asserts that the mere fact that monitoring and harassment of Tamils has decreased significantly does not mean that there is not a real chance that Tamils face a real chance of monitoring and harassment. Whilst as a matter of definition, the applicant is correct, the submission that the Authority misapplied the real chance test over-simplifies the reasoning of the Authority in this case. The Authority’s reasons should be read as a whole, and not selectively, and not with an eye attuned to the perception of error.

[40]    Despite its reference to DFAT information at [37], the Authority’s reasoning culminating in its conclusion at [48], is prefaced on its reasoning from [33]-[47], which is summarised above at [17]-[19]. In short, the Authority had regard not only to country information that supported an improved country situation for Tamils on a day-to-day basis, but it referred to information that indicated that only certain LTTE adherents faced any particular ongoing risk of monitoring. The Authority recognised that the situation in Sri Lanka had changed since the applicant left. Further, the Authority made findings as to the applicant’s past, his suspected links to the LTTE during the civil conflict, the circumstances of his departure from Sri Lanka in 2000, and his present profile, to conclude that the applicant did not have a well-founded fear of persecution or that there was a real risk he would face significant harm.

[41]    To the extent the applicant’s submission is that the Authority needed to discount entirely any possibility of the applicant being subjected to some form of discrimination or mistreatment before it could conclude that it was not satisfied that he had a well-founded fear, the submission is misguided, and incorrect.

The Appeal

12    The appellant advanced three grounds of appeal before this Court. The first ground reflected that which had been argued before the Federal Circuit Court. The second and third grounds were new, meaning the appellant requires leave to argue them.

13    The grounds of appeal, omitting the lengthy particulars to ground two, were as follows:

Ground 1

The Immigration Assessment Authority (“the IAA”) referred at [37] to country information “that monitoring and harassment of Tamils in day to day life has decreased significantly under the Siresena Government”. The mere fact that such conduct towards Tamils has “decreased significantly” does not mean there is no real chance of Tamils being the subject of such conduct. The IAA, in the course of finding at [48] that it was “not satisfied that the applicant faces a real chance of harm” for various reasons:

a)    failed to consider whether the level and degree of monitoring and harassment experienced by Tamils was sufficient to constitute a real chance of serious harm; or

b)    erred in assuming that a significantly decreased occurrence of monitoring and harassment meant that the applicant did not face a real chance of serious harm as a result of the monitoring and harassment.

c)    The Federal Circuit Court Judge Driver made a jurisdictional error in accepting the IAA’s decision.

Ground 2

The change of government and the new information of the country information the Immigration Assessment Authority’s decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).

Ground 3

The Federal Circuit Court Judge Driver misapplied the threshold for what constitutes a “well-founded fear” is low in Chan v Minister for Immigration (1989) 169 CLR 379 and Minister for Immigration v Guo (1997) 191 CLR 559 at 572.

a)    The IAA concluded at [48]:

“Having regard to the applicant’s profile, the passage of time and the change of country situation, I am not satisfied the applicant faces a real chance of harm as a returning Tamil asylum seeker from Batticoloa, with distant family LTTE links, who was himself formerly suspected of involvement and imprisoned.”

b)    The applicant’s concern and complaint is that, in the IAA’s reasons between recording the country information on monitoring and harassment at [37] and its conclusion at [48], there is no finding that there is no real chance that the applicant will face monitoring or harassment on return to Sri Lanka. Instead, the IAA appears to assume that, because the monitoring and harassment of Tamils has “decreased significantly”, therefore there is not a real chance that Tamils, including the applicant, face a real chance of monitoring and harassment. Such as assumption is wrong and involves jurisdictional error. Thus the IAA’s error is one of the following:

i)    The IAA failed to consider whether the level and degree of monitoring and harassment experienced by Tamils was sufficient to constitute a real chance of serious harm.

ii)    The IAA erred in assuming that a significantly decreased occurrence of monitoring and harassment meant that the applicant did not face a real chance of serious harm as a result of the monitoring and harassment.

iii)    A possible reason for the IAA’s errors is that, in its reasons between [37] and [48], it focused on whether there was a real chance that the applicant would “be suspected of having links to the LTTE” (at [39]) or would be “perceived to be a member or supporter of the LTTE” (at [44]) or “will be perceived to be pro LTTE or anti-government” (at [47]). However, there was no evidence before the IAA that monitoring and harassment of Tamils by the authorities was limited to such Tamils. It appears that the IAA made such an assumption. If so, the assumption was unwarranted and not supported by the country information before it.

Ground One

14    The appellant does not identify any specific error by the primary judge, apart from the assertion in paragraph (c). I understand that paragraph to contend that his Honour erred in not accepting that the Authority’s decision was affected by jurisdictional error for the reasons advanced to the Federal Circuit Court, being those identified by particulars (a) and (b) to ground one.

Particular (a)

15    In the context of his argument about particular (a) to ground one, the appellant submitted to the Federal Circuit Court that the Authority made an unwarranted assumption that monitoring and harassment of Tamils by Sri Lankan authorities was limited to those groups of Tamils who either had or were perceived to have LTTE links. This assumption was said to be evident from the Authority’s focus on whether the appellant would “be suspected of having links to the LTTE” (at A[39]), would be “perceived to be a member or supporter of the LTTE” (at A[44]), or would “be perceived to be pro LTTE or anti-government” (at A[47]).

16    The Federal Circuit Court was correct to conclude that the Authority did not make any such assumption. The Authority addressed whether the appellant had, or would be perceived to have, any LTTE link because that consideration was obviously relevant to the issues which the Authority had to decide, including whether the appellant was more likely than other Tamils to be monitored and harassed. It is not evident from the Authority’s reasons that the Authority made an assumption that harassment and monitoring only occurred with respect to those Tamils with actual or perceived LTTE links.

17    I agree with the conclusion of the Federal Circuit Court at J[37] that the appellant’s submission suffers from the mischief of disconnecting the Authority’s reasons at A[37] from the Authority’s reasons as a whole and, in particular, the broad conclusion at A[48].

18    As mentioned, as part of considering the whole of the appellant’s claims, the Authority concluded that the appellant did not have, and would not be considered to have, a profile such that he might attract adverse treatment on his return: A[44]. The Authority did not consider that there was any other aspect of the appellant’s circumstances or history that gave rise to a well-founded fear of persecution: A[48]. In reaching those conclusions, it examined the level of monitoring and harassment which country information indicated might occur: A[37].

19    The Authority considered that the risk of monitoring and harassment, which it had carefully described, was not sufficient in the appellant’s particular circumstances to warrant a conclusion that the appellant had a well-founded fear of persecution or risk of harm because of monitoring or harassment. It described the content of the risk by reference to country information. It identified the “level” of risk through its description of it.

20    Reading the authority’s reasons fairly, in accordance with the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the Authority cannot be said to have “failed to consider whether the level and degree of monitoring and harassment experienced by Tamils was sufficient to constitute a real chance of serious harm”.

21    It follows that particular (a) of ground one is not made out.

Particular (b)

22    The appellant also submitted to the Federal Circuit Court that the mere fact that monitoring and harassment of Tamils had decreased did not mean that the monitoring or harassment did not give rise to a well-founded fear of persecution. That proposition may be accepted, as the primary judge did at J[39]. However, as the primary judge concluded, the Authority did not proceed on the basis that a decrease in monitoring and harassment meant that monitoring and harassment could not give rise to a real chance of serious harm as a result of monitoring and harassment. It merely noted, as one of the many factors it considered, that monitoring and harassment of Tamils had reportedly decreased. The Authority considered the whole of the appellant’s circumstances when considering whether he had a well-founded fear of persecution. The Authority set out its reasoning in detail from A[32] to A[49].

23    Reading the authority’s reasons in accordance with Wu Shan Liang, it cannot be said that the Authority assumed that “a significantly decreased occurrence of monitoring and harassment meant that the applicant did not face a real chance of serious harm as a result of the monitoring and harassment”.

24    It follows that particular (b) of ground one is not made out.

25    Ground 1 must be rejected.

Ground Two

26    Ground two was not advanced before the primary judge and the appellant requires leave to argue ground two. It is not necessary to repeat the relevant principles applicable to whether leave should be granted. It is sufficient for present purposes to record that leave would not ordinarily be granted if the ground lacks merit and there is no other factor favouring leave being granted.

27    Proposed ground two is to the effect that the Authority’s decision had become legally unreasonable because of events which occurred after the Authority’s decision, including the change in government in Sri Lanka on 26 October 2018. As mentioned, the delegate’s decision was dated 13 March 2018 and the Authority’s decision was dated 30 April 2018.

28    Proposed ground two is accompanied by lengthy particulars which refer to, among other things, the “return of Mahinda Rajapaksa” and information contained in “the new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018”. This is the “new information” referred to in ground two.

29    The Authority could not have had regard to material or events which post-dated its decision. There was no basis put forward on appeal as to how the Authority could have committed a jurisdictional error by not taking into account material which was not and could not have been available to it.

30    It is not for this Court on appeal, or for the Federal Circuit Court on an application for judicial review, to intervene because of subsequent developments which might suggest that different factual findings or a different conclusion might have been reached by the Authority if its decision had been made after those subsequent developments had occurred.

31    The task of the Federal Circuit Court was to consider whether there was jurisdictional error on the Authority’s part. The task of this Court is to determine whether the Federal Circuit Court erred.

32    Further, there was no evidence to suggest that the appellant raised the present point with the primary judge. Even if he had, as mentioned, the Federal Circuit Court could not have found jurisdictional error on the part of the Authority on this basis.

33    Proposed ground two has insufficient merit for leave to be granted to raise it on appeal.

34    It should also be noted that the appellant’s representative sought to provide further information to the Authority on 1 April 2018 and 26 April 2018. This was not the information sought to be relied upon in relation to ground two. The Authority considered whether it could take into account that “new information” (as defined in s 473DC) and concluded that exceptional circumstances did not exist sufficient to justify considering the further information under s 473DD(a): A[3] to [11]. It was not suggested either in the notice of appeal or before this Court that this involved any jurisdictional error.

Ground Three

35    Proposed ground three partially repeats ground one. It differs in asserting that the primary judge erred in his conclusion as to what constituted the threshold for a “well-founded fear”.

36    The primary judge stated at J[31] to J[33] (footnotes omitted):

[31]    The threshold for what constitutes a “well-founded fear” is low. For example, in Chan v Minister for Immigration Mason CJ stated at 389:

I agree with the conclusion reached by McHugh J that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality … I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen, per Mason, Wilson and Deane JJ.

[32]     McHugh J stated at 429:

… a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur … an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.

[33]    Similarly, in Minister for Immigration v Guo six members of the High Court (including Dawson J) stated the following in relation to the meaning of “well-founded fear”:

Chan is an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error ... Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term ... 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.

37    There is nothing in the primary judge’s reasoning which suggests that his Honour misunderstood the relevant test.

38    To the extent proposed ground three differs from ground one it has no merit. To the extent it repeats ground one, it has been addressed in the context of ground one. Leave is therefore refused to raise proposed ground three on appeal.

Conclusion

39    Leave to raise grounds two and three is refused.

40    The appeal must be dismissed with costs.

Associate:    

Dated:    21 November 2019