FEDERAL COURT OF AUSTRALIA

DEE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 874

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed 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 and incidental to the appeal.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The appellant, a citizen of Sri Lanka, appeals from a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (visa).

2    The appellant’s notice of appeal originally sought to advance various grounds of appeal. However, by his written submissions filed in advance of the hearing, the appellant abandoned all grounds except one. Under that ground, the appellant contends, in summary, that the Authority erred in applying the “real chance” test, or reasoned in a way that was illogical, irrational or unreasonable, in finding that the applicant did not face a real chance of harm if he returned to Sri Lanka.

3    For the reasons expressed below, my view, in summary, is that, to the extent that the Authority, in the course of making findings of fact, relied on assumptions about the past or future behaviour of the Sri Lankan authorities, those assumptions did not lead to the Authority erring in applying the “real chance” test, or otherwise reasoning in a legally impermissible manner. The appellant’s appeal to this Court is accordingly dismissed.

Background

Procedural history

4    In 2012, the appellant fled from Sri Lanka and arrived in Australia by boat. He was interviewed by the Department of Immigration and Citizenship in September 2012 at an “Arrival Interview” and in February 2013 at an “Entry Interview”.

5    In September 2015, after the Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act), the appellant applied for the visa, in which the appellant claimed protection as a refugee, or by complementary protection, under the Act. The appellant’s representative, a migration agent and lawyer, provided a submission in support of the appellant’s application, including extensive and detailed country information in relation to Sri Lanka.

6    The appellant made the following broad claims in his application for protection:

(a)    the appellant is a Tamil Hindu, in his twenties, a national of Sri Lanka but of no other country, and with no right to enter and reside in any other country;

(b)    the appellant’s brother was a fighter and cadre of the Liberation Tigers of Tamil Eelam (LTTE) who had been, detained, tortured, permanently injured, rehabilitated, and subject to continuing monitoring and reporting;

(c)    because of his race, birth and life in an area formerly under control of the LTTE, and especially because of his brother’s role in the LTTE, the appellant was at risk of, suspected of, LTTE involvement. His brother’s membership of the LTTE, and his brother’s detention, torture and monitoring, was a foundational part of the appellant’s fear of harm.

7    In his statutory declaration in support of his application, the appellant relevantly expressed the following about the reasons why he left Sri Lanka:

Why I left my country:

…

11.     Given I had been born and had lived my entire life in Mallavi, a formerly LTTE controlled area, the authorities automatically believed I had information or was directly connected to the LTTE. My brother had been forcibly recruited by the LTTE in late 2007 and was forced to fight with them. He was captured after being wounded in May 2009. He was in military prison for approximately three years. He underwent a rehabilitation process and was then released. Upon release, he was not allowed to leave Mallavi. The authorities continued to monitor him. He still suffers ongoing issues due to the severity of the injuries he sustained during the War;

12.     When my brother was initially arrested, we were not able to contact him for approximately four months. We then received written communication from him. We were not able to see him until we were resettled. While imprisoned, he was severely tortured. Many of the injuries he sustained during the War were not treated and he still has issues due to same. He has heavy scarring and constant pain.

13.     After my brother's release, I decided to leave Sri Lanka. I witnessed the hardship he suffered and the fact he could no longer live his life freely. He had agreed to join the LTTE to avoid me being taken. We were both originally hiding in the jungle. They wanted us both to go with them. When my brother went with the LTTE, things for me settled for a short while but they then continued to pursue me to join. I had to take a break from school to avoid being recruited.

14.     I fled Sri Lanka as I am afraid I would eventually be forced to admit I was involved in the LTTE as it would be presumed to be the case given my race and background. I lived my life in constant fear that I would be kidnapped and disappear forever.

8    The appellant’s claims that his brother had been imprisoned by the Sri Lankan Army (SLA) was supported by a “Detention Attestation” from the International Committee of the Red Cross and a “Reintegration Certificate” from the “Commissioner General of Rehabilitation” in respect of the appellant’s brother.

9    In relation to his potential return to Sri Lanka, the appellant relevantly claimed that “due to the fact that my brother was involved in the LTTE, there is a real risk I would be subjected to torture”. Moreover, the appellant claimed that he, and his father, had been questioned about the LTTE, and beaten, by the authorities. The appellant claims that he had suffered this both during his time in a SLA camp at the end of the war, and also since in the course of harassment, pressure, checking and physical harm. The appellant says that he departed Sri Lanka illegally and claims to feel serious harm, including arrest, torture and being killed if he returns to Sri Lanka.

10    In support of his visa application, the appellant presented evidence of his brother’s detention and rehabilitation, and extensive submissions by his then representatives, which gave detailed submissions about the appellant’s particular claims. His representative’s submissions also referred to the general situation in Sri Lanka, especially the alleged entrenched culture of torture, by reference to many sources of information, including the UNHCR, DFAT, United States Department of State, Freedom form Torture, Human Rights Watch, Amnesty International and the International Crisis Group.

11    The country information included references to motivations behind the claimed “culture of torture”. For instance, a report by Human Rights Watch dated 31 January 2013, recounting events in Sri Lanka in the preceding years, recorded that “State security forces committed arbitrary arrests and torture against ethnic minority Tamils, including repatriated Sri Lankan nationals allegedly linked to the defeated Liberation Tigers of Tamil Eelam (LTTE)” and that “Tamils with alleged links to the LTTE were increasingly at risk of arbitrary arrests and torture”. Likewise, a document published by the Asylum Research Consultancy dated 19 August 2014 expressed that seventy-three certain individuals had been the subject of torture, and that “[t]he key factor that appears to have led to the detention and torture of these men and women by state authorities was a real or perceived connection to the Liberation Tigers of Tamil Eelam (LTTE) – either their own connection and/or that of a family member or acquaintance”.

12    On 14 December 2015, a delegate of the Minister interviewed the appellant. On 5 January 2016, the appellant’s representative provided written submissions to the Department.

13    On 19 July 2016, the delegate refused to grant the visa. The delegate concluded that the appellant was not a person in respect of whom Australia owed protection obligations. In broad terms, the delegate accepted that the appellant’s brother had been an LTTE cadre, and that the appellant had been questioned in the army camps and afterwards, but not physically harmed to the extent claimed.

14    On 21 July 2016, the delegate’s decision was referred to the Authority pursuant to s 473CA of the Act.

15    On 16 August 2016, the appellant’s representative provided written submissions to the Authority. After raising and addressing various aspects of the delegate’s reasons, the submission concluded as follows:

Conclusion

In Chan Yee Kin v The Minister for Immigration and Ethnic Affairs, Toohey J found a real chance is not a far-fetched possibility. We submit that give the applicant’s personal circumstances as outlined above and the fact the Sri Lankan Authorities continue to subject individuals with a perceived association to the LTTE to serious and significant harm, we submit that there is a real chance the applicant would face significant and serious harm upon return to Sri Lanka.

(Citations omitted.)

Authority’s decision

16    On 7 October 2016, the Authority held that the appellant was not owed protection obligations, and accordingly affirmed the delegate’s decision: Authority’s decision record (IAA Reasons) at [56] and [68].

17    The Authority summarised the appellant’s claims for protection as follows:

[10]     The applicant’s claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows:

•    He is a Tamil and was born on 8 August 1991 in Mallavi, Mullaitivu, Northern Province and is a Sri Lankan citizen. Mullavi was a former LTTE-controlled area during the civil war.

•    His elder brother was forcibly recruited to join the LTTE in late 2007.

•    Between 2008 and 2009 his family was displaced due to the war and lived in various places.

•    His brother was captured by the Sri Lankan Army (SLA) in May 2009 and detained for approximately 20 months where he was tortured and underwent rehabilitation and then subsequently released in 2010.

•    In May 2009 his family entered a Sri Lankan Army (SLA) camp. Whilst at the camp he was interrogated and beaten about whether he had any involvement with the LTTE.

•    When his family returned to their home in February 2010 they were not allowed to leave their area and had to sign in several times a week. He was regularly questioned about whether he had any involvement with, or knowledge of, the LTTE in his area and was physically harmed when forced to attend the CID office. His family continued to be monitored by the Sri Lankan authorities.

•    He fled Sri Lanka by boat in August 2012 as he was afraid that he will eventually be forced to admit that he was involved in the LTTE.

•    There is a real chance/real risk he will be subjected to serious and significant harm because his brother was a LTTE member, because he is a Tamil/young Tamil male from the North and from a former LTTE controlled area, and because he is a returnee from the West and/or a failed asylum seeker who left Sri Lanka illegally.

18    The Authority next considered the appellant’s claims regarding the events experienced by his brother. The Authority largely accepted the appellant’s evidence in this regard:

[14]     The applicant claims that his brother was forcibly recruited to the LTTE in late 2007 but was later captured after being wounded in May 2009. He was then held in a military prison for approximately 20 months where he was tortured and underwent rehabilitation and subsequently released in 2010. Many of his injuries from the war were not treated and he still has issues and heavy scarring and is in constant pain. The applicant has provided two documents in relation to his brother’s detention, one of which is letter issued by the Commissioner General of Rehabilitation which indicates that his brother was “reintegrated” on 11 November 2010. On the basis of the applicant’s consistent evidence, documentary evidence and corroborating country information, I accept the above claims.

[15]     The applicant claims that, upon release, his brother was not allowed to leave Mallavi and the Sri Lankan authorities continued to monitor him. During the protection visa interview the applicant claimed that his brother still lives with his family and is still under close watch and has to sign in every week and the Sri Lankan authorities come and check on him regularly. I accept his claims in this regard and have given weight to corroborating country information which indicates that rehabilitees are visited by military and intelligence agents or are required to report regularly.

(Citations omitted.)

19    At [16] of the IAA Reasons, however, the Authority rejected the appellant’s submission that his brother was a “hard core” LTTE member or an important LTTE leader. Instead, the Authority concluded that the appellant’s brother merely had “a low-level of involvement”.

20    The Authority rejected the appellant’s claims that there was a real chance or real risk the appellant will be subjected to serious or significant harm because his brother was a LTTE member (ibid at [19]), because the appellant is a young Tamil male from the North and from a former LTTE controlled area (ibid at [20]–[43]), and because the appellant is a returnee from the West and/or a failed asylum seeker who left Sri Lanka illegally (ibid at [44]–[55]).

21    The Authority’s analysis giving rise to these conclusions was comprehensive and is unnecessary to extract in full. It is convenient, however, to extract certain paragraphs that are challenged by the appellant. First, in relation to the appellant’s claim to fear harm because of being a young Tamil male from the North and from a former LTTE controlled area, the IAA Reasons included the following lengthy paragraph:

Fear of Harm as a Tamil/young Tamil male from the Northern Province/former LTTE-controlled area

…

[30]     Although I accept that returning IDPs from former LTTE-controlled areas may have been monitored during that period due to the perception that they were LTTE members/sympathisers, country information indicates that the return of IDPs from the army camps to their place of origin in the Vanni did not create any serious and human rights-related problems and were not necessarily targeted, unless some fresh evidence surfaced of their involvement with the LTTE. I also do not consider it plausible that the Sri Lankan authorities would have taken a renewed interest in the applicant approximately six months after his release from the SLA camp in August 2010 by continually interrogating and physically harming the applicant in relation to his perceived affiliation with the LTTE. Although his brother was a former LTTE member, the applicant has not claimed that, during his interrogation post-release from the SLA camp, he was accused of having links and knowledge of the LTTE because of his brother’s involvement but claims the authorities believed he was directly connected to the LTTE because he had been born and lived his entire life in a former LTTE-controlled area. Had the Sri Lankan authorities had a real suspicion that the applicant had further links to the LTTE, beyond his brother’s former membership, I consider the applicant would have been questioned more than twice whilst in the SLA camp and would have been separated from his family and sent to another detention camp as was occurring in the army camps where IDPs during that time. Although he claimed that he avoided further questioning in the SLA camp by claiming that he was studying I am not satisfied that, had the CID had a real suspicion towards the applicant, that his studies would have prevented them from questioning him further. When the delegate asked the applicant if his brother has experienced any harm after his release from detention he claimed that he has to go and sign in and is being monitored. I do not accept, as plausible, that the applicant suffered regular interrogation and torture after he was released from the army camp and yet his brother, who was a known former LTTE member, has not experienced similar harm after his release. The applicant claims that the mistreatment his brother suffered while detained in Sri Lanka has resulted in him barely being able to function as a person and the Sri Lankan authorities are satisfied that he no longer has the capability to assist any groups or political parties and that there is no need to harm him further. I find this to be in contradiction to the applicant’s claim that his brother is still being monitored, that he has to sign in with the authorities and his movements are restricted. For these reasons I do not accept that, between August 2010 and August 2012, the applicant was regularly questioned, pressured, harassed, beaten or otherwise physically harmed in relation to his knowledge of, or links to, the LTTE or whether he undertook LTTE training. Although I accept that his family had to register and sign in with the local authorities when they returned to their home area I consider that this was imposed on many returning IDPs as a form of monitoring. However, as the applicant was only questioned twice about suspected links to the LTTE whilst residing in the army camp and I have not accepted that the applicant was subsequently questioned, harassed and physically harmed due to suspected links to the LTTE, I do not accept that, at the time of his departure from Sri Lankan in 2012, the Sri Lankan authorities suspected the applicant of having direct links to the LTTE.

(Citations omitted and emphasis added.)

22    Then, after further analysis in respect of the same claim, the Authority expressed the following:

[38]     … [the submission to the delegate] further refers to an August 2015 report by Freedom of Torture which claims that torture continues to take place under the new government. It claims that Tamils who return from abroad are at risk of serious harm and an individual does not need to have had strong links to the LTTE to be imputed to pro-LTTE sentiments and be subjected to torture. I accept that country information indicates the prevalence of torture by the Sri Lankan authorities and that torture has been, and is, used against people suspected of being linked to the LTTE by the Sri Lankan authorities, and groups associated with authorities. I have not, however, accepted that the applicant was of any adverse interest to the Sri Lankan authorities as someone with suspected direct links to the LTTE or because his brother was a former LTTE member, at the time he fled Sri Lanka or that he will be of adverse interest on return. I am not satisfied that the applicant faces a real chance of harm on return to Sri Lanka on the basis of being considered an imputed LTTE supporter/member.

(Citations omitted and emphasis added.)

23    In relation to the appellant’s claim to fear harm as a returnee from the West or as a failed asylum seeker who left Sri Lanka illegally, the IAA Reasons also stated the following:

Fear of harm for illegal departure and as a returnee from the West and as a failed asylum seeker

…

[48]     I am not satisfied that the applicant fits within these profiles. There is no information before me to indicate that the applicant has been politically active in support of the Tamil cause whilst in Australia or that the Sri Lankan authorities suspect him of doing so. I have not accepted that he was of adverse interest to the Sri Lankan authorities on suspicion of having links to the LTTE at the time of his departure from Sri Lanka in 2012. Although his brother is a former LTTE member, this is already known to the Sri Lankan authorities and his brother has been rehabilitated and remains residing in the family home. I am not satisfied that there is a real chance the Sri Lankan authorities will take an adverse interest in the applicant on return to Sri Lanka for any reason. I am not satisfied that there is a real chance the applicant will be subject to prolonged questioning/detention or harm for any reason on return at the Sri Lankan airport or in his home area.

…

[53]    I accept that there is a real chance the applicant may be held by the police in the airport for 24 hours and, if a Magistrate is not immediately available, he could be held at a nearby prison for several days. Sources indicate a prevalence of torture and mistreatment of detainees by the Sri Lankan authorities whilst in custody. In the submission to the delegate, it referred to country information which claimed that the Australian government does not take proactive steps to monitor the safety of returnees and does not follow up complaints of abuse. DFAT’s recent assessment acknowledges that it does not routinely monitor the situation of returnees but concludes that returnees are not subject to mistreatment during processing at the airport and that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the I&E Act. Country information cited earlier suggests those at more risk of mistreatment on return are those with suspected or actual links to the LTTE or who have been politically active in Sri Lanka or whilst overseas. I have already found that the applicant was not of any adverse interest to the Sri Lankan authorities when he departed Sri Lanka and I am not satisfied that he will be of adverse interest on return for any reason. For these reasons I am not satisfied the applicant will face a real chance of harm whilst being detained and questioned by the authorities on return to Sri Lanka.

(Citations omitted.)

Federal Circuit Court’s decision

24    On 25 October 2016, the appellant applied to the Circuit Court for judicial review of the Authority’s decision. On 27 May 2019, the appellant filed an amended application for judicial review, by which he raised three grounds of review. Relevantly for present purposes, ground of review 1(b) in the Circuit Court alleged the following:

1.    The Second Respondent (“the Authority”) erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction.

Particulars

…

(b)     The Authority erred in interpreting or applying the term “real chance” under section 5H of the Act, in finding that it was “not satisfied that there is a real chance the Sri Lankan authorities will take an adverse interest in the applicant on return to Sri Lanka for any reason” (Decision and Reasons [48], CB 253), and “not satisfied that he will be of adverse interest on return for any reason” (Decision and Reasons [53], CB 254 – 255).

25    On 17 October 2019, the Circuit Court dismissed the appellant’s application for judicial review: DEE16 v Minister for Immigration & Anor [2019] FCCA 2966. In relation to ground of review 1(b), as extracted above, the Circuit Court concluded as follows:

[25]    I do not consider that the Authority’s reasoning on this issue is indicative of a misapprehension of the real chance test. The Authority’s reasoning was open to it. The Authority explained why the circumstances of the applicant’s brother did not lead to the [applicant] having a well-founded fear of persecution. In this ground, the applicant is essentially seeking merits review. The second aspect of ground 1 is not made out.

Appeal to this Court

26    The appellant appealed the Circuit Court’s decision to this Court on 12 November 2019. The appellant’s notice of appeal originally included various grounds to challenge the Circuit Court’s decision. However, after the filing of written submissions, the appellant confined his challenge to the following ground (which materially replicates ground of review 1(b) advanced in the Circuit Court):

1.    The Federal Circuit Court at first instance erred in not finding that [the Authority] erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction.

Particulars

    …

(b)     The Authority erred in interpreting or applying the term “real chance” under section 5H of the Act, in finding that it was “not satisfied that there is a real chance the Sri Lankan authorities will take an adverse interest in the applicant on return to Sri Lanka for any reason” (Decision and Reasons [48], CB 253), and “not satisfied that he will be of adverse interest on return for any reason” (Decision and Reasons [53], CB 254-255).

Submissions

Appellant’s submissions

27    The appellant’s broad submission is that the Authority’s conclusion that the appellant did not have a real chance of suffering persecution or significant harm was one that it could not have reached if it correctly interpreted and applied the “real chance” test in accordance with law. The appellant accordingly submits that the Authority fell into jurisdictional error.

28    In respect of the overarching principles, which were not materially challenged by the Minister, the appellant submits that:

(a)    the Authority, in conducting a review of the delegate’s decision, was required to undertake a de novo consideration of the merits of the referred decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [17] per Gageler, Keane and Nettle JJ. As such, the appellant submits that the Authority was required to determine for itself, on the basis of all the evidence before it, whether it was satisfied that the appellant met the criteria for protection as a refugee under s 36(2)(a) of the Act, or by complementary protection under s 36(2)(aa) of the Act;

(b)    s 473DB(1) of the Act required that the Authority conduct the review “by considering the review material provided to the Authority under s 473CB”. In doing so, the Authority was required to have “an actual intellectual engagement” with the material: Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [40] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ;

(c)    in complying with this process, the Authority was obliged to consider whether there was a real chance (even if very small) that the appellant may suffer persecution, and thus meet the criterion in s 36(2)(a) of the Act, or a real risk (identical to a real chance) of significant harm, and meet the criterion in s 36(2)(aa) of the Act. The appellant submits that a real chance is “a substantial, as distinct from a remote chance, of persecution occurring”, but also it may be quite small: Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; 169 CLR 379 (Chan) at 389 per Mason CJ and 423–429 per McHugh J; and

(d)    the requirement to consider whether there was a real chance of harm, even if that was a small chance, was therefore the statutory context for the Authority’s task, and the litmus test for reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [67] per Hayne, Kiefel and Bell JJ.

29    The appellant particularly challenges the Authority’s finding at [30] of the IAA Reasons, where the Authority concluded as follows:

… I do not accept that, between August 2010 and August 2012, the applicant was regularly questioned, pressured, harassed, beaten or otherwise physically harmed in relation to his knowledge of, or links to, the LTTE or whether he undertook LTTE training.

30    According to the appellant, this finding was critical to the Authority’s determination of the appellant’s claim for protection. At [38] of the IAA Reasons, the Authority expressed that, although it accepted “the prevalence of torture by the Sri Lankan authorities and that torture has been, and is, used against people suspected of being linked to the LTTE”, the Authority concluded as follows:

I have not, however, accepted that the Applicant was of any adverse interest ... as someone with suspected direct links to the LTTE or because his brother was a former member of the LTTE, at the time he fled Sri Lanka or that he will be of adverse interest on return.

31    The appellant contends that the Authority’s finding at [30] of the IAA Reasons was based upon two unsupported assumptions, namely that:

(a)    the Sri Lankan authorities would not, after torturing and seriously injuring him, treat a gravely injured LTTE cadre in a way that was less harmful than their continuing treatment of a sibling (who claimed that he and his brother were close, and that his brother had gone into the LTTE in place of the appellant, and that this relationship affected his risk); and

(b)    the Sri Lankan authorities, in inflicting torture, must always act coherently and consistently, or at least that there was no real chance that they would not do so.

32    The appellant argues that these unsupported assumptions necessarily import into the Authority’s findings an incorrect understanding or application of the term “real chance” of harm. In the appellant’s submission, these unsupported assumptions, and the Authority’s failure to consider that a known rehabilitated, but gravely injured, LTTE member might be subject only to monitoring, while his brother might be harassed and physically harmed, demonstrate that the Authority did not understand that a “real chance” of harm might be very small. The consequence, according to the appellant, is that the Authority erred:

(a)    in interpreting or applying the term “real chance” under s 5H of the Act;

(b)    in finding (at [48] of the IAA Reasons) that it was “not satisfied that there is a real chance the Sri Lankan authorities will take an adverse interest in the applicant on return to Sri Lanka for any reason”; and

(c)    in finding (ibid at [53]) that it was “not satisfied that he will be of adverse interest on return for any reason”.

33    Another way of understanding the Authority’s error, according to the appellant, is that, if the Authority had correctly understood and applied the “real chance” test for well-founded fear of persecution, and for a real risk of significant harm, the Authority could not reasonably have come to the conclusion that there was no such real chance in the appellant’s circumstances. The appellant submits that, in order for the Authority to come reasonably to this conclusion, that conclusion needed to have a logical foundation, which it did not have: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [16]–[31] and [32]–[40] per Gummow A-CJ and Kiefel J and [119]–[120] and [124]–[133] per Crennan and Bell JJ.

Minister’s submissions

34    The Minister observes in response that, although ground 1(b) of the appellant’s notice of appeal (as extracted above at [27]) refers to [48] and [53] of the IAA Reasons, it appears from the appellant’s submissions that his principal complaints are that the Authority did not accept that:

(a)    between August 2010 and August 2012, the appellant was regularly questioned, pressured, harassed, beaten or otherwise physically harmed in relation to his knowledge of, or links to, the LTTE or whether he undertook LTTE training: ibid at [30]; or

(b)    the appellant was of any adverse interest to the Sri Lankan authorities as someone with suspected direct links to the LTTE, or because his brother was a former member of the LTTE at the time he fled Sri Lanka, or that he would be of adverse interest to the authorities on return: ibid at [38].

35    The Minister submits, in summary, that the Circuit Court was correct to reject the appellant’s complaints. In the Minister’s submission, the appellant’s challenges to the Authority’s findings are, as the Circuit Court recognised, essentially an invitation to engage in merits review.

Consideration

36    In my view, the appellant’s challenges to the Authority’s findings are, as the Minister submits, essentially an invitation to engage in a review of the merits of the Authority’s decision. It is apparent from the Authority’s reasons that it accepted many aspects of the appellant’s claims. In particular, the Authority accepted that:

(a)    the appellant’s brother was forcibly recruited to the LTTE in 2007, was captured after being wounded in 2009, was held in a military prison for approximately 20 months where he was tortured, and was released in 2010: IAA Reasons at [14];

(b)    after his release, the appellant’s brother was monitored by the Sri Lankan authorities: ibid at [15];

(c)    the appellant’s family entered a SLA camp in 2009: ibid at [24];

(d)    while residing in the SLA camp, the appellant was interrogated and beaten by the CID on two occasions about any links to the LTTE, and his father was similarly beaten: ibid at [25]; and

(e)    the appellant’s family had to register with the Sri Lankan authorities on return to their home area: ibid at [27].

37    However, the Authority also rejected the specific claims of the appellant:

(a)    that, between August 2010 and August 2012, the appellant was regularly questioned, pressured, harassed, beaten or otherwise physically harmed in relation to his knowledge of, or links to, the LTTE or whether he undertook LTTE training: ibid at [30]; and

(b)    that the appellant was of any adverse interest to the Sri Lankan authorities as someone with suspected direct links to the LTTE, or because his brother was a former member of the LTTE at the time he fled Sri Lanka, or that he would be of adverse interest to the authorities on return: ibid at [38].

38    In my view, the Authority provided a cogent and logical basis in its reasons for rejecting these claims. In doing so, the Authority relied on the following matters:

(a)    after his release from rehabilitation, the appellant’s brother remained at home and was not involved in any activities that would attract further attention from the Sri Lankan authorities: IAA Reasons at [17];

(b)    the Sri Lankan authorities did not take any additional adverse interest in the appellant’s brother after his release from rehabilitation: ibid at [17];

(c)    while the appellant was in the SLA camp, he was not specifically questioned about his brother’s involvement with the LTTE: ibid at [18];

(d)    while the appellant was in the SLA camp, the questioning to which he was subject was similar to the questioning to which all of the boys were subject: ibid at [18];

(e)    while the appellant was in the SLA camp, he was not separated from his family and sent to another detention camp: ibid at [18] and [30];

(f)    the appellant was not prevented from departing Sri Lanka in 2012, and did not face any difficulties departing Sri Lanka at that time: ibid at [29];

(g)    it was not plausible that the Sri Lankan authorities would take a renewed interest in the appellant only six months after releasing him from the Sri Lankan army camp: ibid at [30];

(h)    it was not plausible that the Sri Lankan authorities would regularly interrogate and torture the appellant after releasing him from the SLA camp in circumstances where they had shown no additional adverse interest in his brother, who was a known former LTTE member: ibid at [30]; and

(i)    the appellant’s claim that his brother was of no interest to the Sri Lankan authorities (because he was barely able to function as a person) contradicted the appellant’s claim (which the Authority accepted) that the appellant’s brother was subject to monitoring after his release: ibid at [30].

39    I reject the appellant’s submission that the Authority misunderstood or misapplied the “real chance” test. The assessment of whether a person will face a real chance of serious harm if returned to a country is a “predicative exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”: MZYTS v Minister for Immigration and Citizenship [2013] FCAFC 114 at [33] per Kenny, Griffiths and Mortimer JJ; see also Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 (Guo) at 571-573 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

40    The Authority made findings about what had happened to the appellant in the past. Those findings, and the relevant country information, formed the basis upon which the Authority concluded that the appellant would not face a real chance of serious harm if he returned to Sri Lanka. There is nothing in the reasoning of the Authority to indicate that the Authority misunderstood or misapplied the “real chance” test, nor is there anything in the reasoning of the Authority which is inconsistent with an understanding that a “real chance” may be very small or far less than a 50% chance: Chan at 397–398 per Dawson J and 429 per McHugh J; Guo at 572.

41    More particularly, the applicant contended that, “on closer inspection”, the Authority’s findings were underpinned by the unsupported assumptions outlined above at [32]. Although the applicant did not identify specific aspects of the IAA Reasons where the Authority employed these erroneous assumptions, a prominent potential example is the following passage in the middle of [30] of the IAA Reasons:

… Had the Sri Lankan authorities had a real suspicion that the applicant had further links to the LTTE, beyond his brother’s former membership, I consider the applicant would have been questioned more than twice whilst in the SLA camp and would have been separated from his family and sent to another detention camp as was occurring in the army camps where IDPs during that time. Although he claimed that he avoided further questioning in the SLA camp by claiming that he was studying I am not satisfied that, had the CID had a real suspicion towards the applicant, that his studies would have prevented them from questioning him further. When the delegate asked the applicant if his brother has experienced any harm after his release from detention he claimed that he has to go and sign in and is being monitored. I do not accept, as plausible, that the applicant suffered regular interrogation and torture after he was released from the army camp and yet his brother, who was a known former LTTE member, has not experienced similar harm after his release. …

42    In this passage, the Authority used the appellant’s own evidence to draw a distinction between the appellant and his brother, and, by reference to this distinction, ultimately determined that the applicant’s evidence about his own treatment by the LTTE was not plausible. In doing so, it is true that the Authority utilised implicit “assumptions”, or “presumptions”, about human behaviour to make findings of fact. One basic “assumption” in this passage, for instance, is that the greater the degree of known historical connection between a person and the LTTE, the higher the likelihood that the Sri Lankan authorities would seek to detain and question that person. The Authority used this “assumption” to reason that, if the appellant’s brother, who was a known former LTTE member, had not experienced regular interrogation and torture after release from a SLA camp, then it was implausible, as claimed by the appellant, that the appellant, who did not have such a strong link with the LTTE, would have experienced such harm.

43    This “assumption” may not have been expressly derived from direct evidence before the Authority such as, for example, formal procedures and policies of the Sri Lankan authorities as to how they would treat particular members of the community suspected of having links with the LTTE. But administrative decision-makers, such as the Authority, are, in the course of exercising their fact-finding functions, regularly required to draw inferences or deductions from the evidence, or engage in other forms of reasoning, using “assumptions” based on logical and general experience. What is most important is that such common assumptions are not employed in a manner inconsistent with the evidence before the decision-maker. To draw an analogy from judicial fact-finding by way of example, a personal judicial opinion based on common knowledge and experience must give way to expert opinion on that matter: Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as Otford Farm Trail Rides [2006] NSWCA 226; (2006) Aust Torts Reports ¶81–866 at [155] per Ipp JA.

44    Notwithstanding this example, there are, of course, fundamental differences between the judicial review of judicial fact-finding and judicial review of administrative fact-finding. This follows from the “long line of authority that treats findings of fact as not involving a question of law or legality”: Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 (Pilbara Infrastructure) at [156] per Edelman J. In Pilbara Infrastructure, Edelman J, in the course of considering the authorities in relation to erroneous factual findings, summarised the prevailing Australian position as follows at [159]:

… the question of law is only whether there is any evidence of a fact. Hence, it will be an error of law, and a ground of judicial review, only where an administrative decision maker decides a question of fact when there is no evidence to support that fact. The same is true in relation to inferences of fact. In Australian Broadcasting Tribunal v Bond [[1990] HCA 33; 170 CLR 321], Mason CJ explained that in Australian law there will be no error of law ‘[s]o long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning’ (original emphasis). It is for this reason that it has been said that any want of logic is only relevant if it ‘sound[s] a warning note to put one on inquiry whether there was indeed any basis for the inference drawn’.

(Citations omitted.)

45    Edelman J noted, for instance, that these principles stood in contrast to the principles in England “where an ‘irrational’ factual finding or an ‘irrational’ drawing of an inference is recognised as a ground of review”: Pilbara Infrastructure at [163], citing Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430 at [99] per Lord Millett.

46    Similarly, in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; 240 FCR 261, the Full Court (constituted by Wilcox, Marshall and Jacobson JJ) acknowledged (at [11]–[12]) the accepted principle that “an administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact which lacks any supporting evidence”. However, in a subsequent remark that resonates in the present case, their Honours observed at [12] that “it is difficult to apply [that principle] to a rejection of evidence” (emphasis added).

47    In the present case, the relevant rejection of the appellant’s evidence by the Authority was based upon an assumption as to the scope of plausible behaviour on the part of the Sri Lankan authorities. As highlighted above, the Authority relevantly reasoned that, if the appellant’s brother, who was a known former LTTE member, had not experienced regular interrogation and torture after release from a SLA camp, then it was implausible that the appellant, who did not have that link with the LTTE, would have experienced such harm. The appellant has not pointed to anything in the evidence before the Authority that contradicts this inference and, in my view, this process of reasoning was open to the Authority. Moreover, in this same regard, I add that the Authority was not required to possess rebutting evidence before holding that a particular factual assertion by the appellant was not made out: see, in relation to the Administrative Appeals Tribunal, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 (CQG15) at [65] per McKerracher, Griffiths and Rangiah JJ. Ultimately, even assuming, contrary to my personal view, that the Authority’s reasoning in this regard was mistaken, it was an error made within the Authority’s jurisdiction.

48    The appellant further submits that the Authority’s fact-finding was based upon the “unsupported assumption” that the Sri Lankan authorities, in inflicting torture, must always act coherently and consistently, or at least that there was no real chance that they would not do so. The terms of this complaint do not readily distinguish between the Authority’s fact-finding in relation to past events, and the Authority’s consequent predicative exercise based on that fact-finding. In relation to the Authority’s fact-finding as to past events, it is not clear what the appellant is alleging the Authority ought to have alternatively done, or how it ought to have alternatively premised its reasoning. As explained above, the Authority reasoned that the appellant’s evidence as to past events was implausible based on what the appellant said had occurred (or not occurred) to his brother. That reasoning process was open to the Authority.

49    As for the Authority’s predictive exercise involving speculation as to future circumstances, there is nowhere in the IAA Reasons where the Authority relied on a presumption that Sri Lankan authorities will always, forevermore, operate in a coherent and consistent manner. The IAA Reasons instead recognise, consistent with the relevant statutory task, that the predictive exercise involves an assessment of chance or risk: see IAA Reasons at [12] and [57]. In assessing that chance or risk, occurrences in the past are likely to be the most reliable guide as to what would happen in the future: CDW18 v Minister for Home Affairs [2019] FCA 270 at [15] per Thawley J. Given the Authority disbelieved relevant aspects of the appellant’s claims as to past events—in particular that the appellant was regularly questioned, pressured, harassed, beaten or otherwise physically harmed during the relevant period—it is unsurprising that the Authority, in assessing future events, concluded that the appellant did not face a real chance of persecution, or a real risk of significant harm, upon return to Sri Lanka.

50    For these reasons, I also reject the appellant’s challenge to the Authority’s findings of fact on the ground that they are irrational, illogical or unreasonable. As summarised by the Full Court in CQG15 at [59]–[61], a person who seeks to challenge findings of fact on the ground that they are irrational, illogical or unreasonable must meet a high standard. In my view, the appellant has failed to establish that the relevant findings reached by the Authority are ones that no reasonable decision-maker could have reached based on the material before it.

51    Finally, there is no basis to draw an inference from the outcome of the Authority’s decision that the Authority misapplied the relevant statutory test. I do not agree with the appellant’s submission that, given the Authority accepted that the appellant’s brother was imprisoned and subsequently monitored by the Sri Lankan authorities (IAA Reasons at [14]–[15]), and accepted that there was a prevalence of torture by Sri Lankan authorities against people suspected of being linked to the LTTE (ibid at [38]), then the Authority could not have reached the result it did if it correctly applied the real chance test.

52    The Authority explained its path of reasoning in detail. Although it is true, as the appellant highlights, that the Authority accepted that the appellant’s brother was imprisoned and subsequently monitored by the Sri Lankan authorities, the weight of this acceptance was evidently diminished by the fact that the Authority was not satisfied that the brother had a high-level connection with the LTTE (ibid at [16]), and there was no evidence before the Authority to suggest that the brother had subsequently become involved in any pro-LTTE activities, or otherwise done anything to attract further adverse attention from the Sri Lankan authorities (ibid at [17]). It is also true that the Authority accepted the prevalence of torture in Sri Lanka of people linked with LTTE members, but, as explained above, the Authority permissibly reasoned and found that, if the appellant’s brother, who was a known former LTTE member, had not experienced regular interrogation and torture after release from a SLA camp, then it was implausible that the appellant, who did not have that link with the LTTE, would have experienced such harm.

53    The appellant may disagree with Authority’s reasoning and conclusion, but to further delve into the Authority’s process of reasoning would, in my view, impermissibly intrude upon the Authority’s exclusive jurisdiction to determine the merits of the appellant’s visa application.

Conclusion

54    For the reasons expressed above, the appellant’s appeal to this Court is dismissed. The appellant will pay the Minister’s costs of and incidental to the appeal.

Associate:

Dated:        2 July 2020