FEDERAL COURT OF AUSTRALIA

CGM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1601

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first appellant pays the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) delivered on 10 October 2019. The FCCA dismissed an application under s 476 of the Migration Act 1958 (Cth) by which the appellants sought judicial review of a decision of the Immigration Assessment Authority (IAA) made on 29 March 2018. The IAA had affirmed a decision of a delegate of the Minister not to grant each of the appellants a Safe Haven Enterprise (Class XE) visa (SHEV).

2    The first appellant is a Sri Lankan male national of Tamil ethnicity, aged 33, who arrived in Australia as an unauthorised maritime arrival on 14 October 2012.

3    The first appellant came to Australia with his wife, who is also a citizen of Sri Lanka. Since arriving in Australia, the couple have had two children. The couple’s first child is the second appellant in this proceeding. The second appellant has no independent claim for protection. The first appellant’s wife has a separate claim for protection.

4    The notice of appeal raises two grounds concerning the IAA’s consideration of the appellants’ protection claims. The first ground concerns the first appellant’s accounts of events that allegedly occurred in Jaffna in 2010 (Jaffna claims). That evidence, if accepted, could have supported the first appellant’s claim to fear harm if he returned to Sri Lanka by reason of his connections to the Liberation Tigers of Tamil Eelam (LTTE). The appellants contend that the FCCA judge erred by failing to find that the IAA’s conclusion that the first appellant was not telling the truth and that he had fabricated certain events to enhance his claims for protection in Australia was reached without a logical or probative basis.

5    The second ground is that the FCCA judge erred by failing to find that the IAA had not considered one of the first appellant’s claims for protection. The relevant claim was that the first appellant feared harm, if he was returned to Sri Lanka, because he had not come forward to identify himself as a person who had undertaken weapons training and who had manned checkpoints carrying weapons with instructions to shoot the Sri Lankan security agencies who tried to pass the checkpoint.

6    On 25 May 2020, the parties consented to this matter being determined on the papers.

BACKGROUND FACTS AND PROTECTION CLAIMS

7    The first appellant applied for a SHEV by letter dated 13 July 2017. In a statement dated 13 June 2017 (June 2017 statement), accompanying the SHEV application, the first appellant purported to summarise his claims for protection. Of particular relevance to the appeal, the first appellant said:

(1)    When he was 18 years old, he was required to do some basic compulsory weapons training for two weeks which taught him to identify and diffuse bombs and operate a T56.

(2)    About three months after his basic training, the LTTE asked him to do spy work in the A9 area. He was asked to watch the movements of the Sri Lankan Army in that area for approximately two weeks.

(3)    In about January 2010, he elected to relocate to Jaffna, where he opened a jewellery shop. Paragraphs 18 to 21 of the statement are as follows:

After 10 months, I had to sell the shop to an accountant who worked in the shopping centre because the CID constantly harassing us. The army had started harassing [V]’s family because of me and accused him of harbouring someone from an LTTE area. This was because I was a businessperson from Killinochchi who was released from the army camp and voluntarily relocated to Jaffna.

The harassment was severe and the CID/army ransacked [V]’s house twice and held a gun to his wife’s head threatening them for assisting a person of suspicion in their home. As a result of this, I went to the local police station to make a report that the army may have been looking for me. I then went to the local army camp office to enquire whether anyone was looking for me. An officer told me that no one was looking for me and said I was free to go but would contact me if they needed to.

The next day, a CID officer came to the shop while I was away and left a message with [B] for me to report to the CID office as soon as possible. When I returned and received the message from [B], I immediately reported to the CID office. I spoke to person called [K] who was a former LTTE cadre who now worked for the CID. He questioned me about whether I knew of him and asked me to tell him if I was involved with the LTTE.

He didn’t believe me and detained me for three days. During that time, they tortured me and continued to question his involvement with the LTTE movement. On the third day they released me with a warning not to leave Jaffna without reported to them first.

8    The SHEV application was refused by the delegate on 10 January 2018. The delegate did not reject the first appellant’s account of his experiences in Sri Lanka, but concluded that his profile would not be of interest to Sri Lankan authorities.

9    By letter dated 17 January 2018, the first appellant was informed that the delegate’s decision had been referred to the IAA for review.

10    By letter dated 29 March 2018, the first appellant was informed that the IAA had decided to affirm the delegate’s decision. The IAA was not satisfied that the first appellant would face a real chance of persecution arising from any of his or his family’s LTTE connections, his former residence in the LTTE controlled north, his brother’s claims to asylum, his perceived wealth, his status as a failed asylum seekers or any combination of these claims.

11    At para 46 of its decision record, the IAA concluded relevantly:

Having considered all of the evidence before me, and noting that more than 10 years have passed since [the first appellant’s] limited involvement with the LTTE, that close family members continue to live in Kilinochchi without problems and that [the first appellant] was able to depart, and re-enter Sri Lanka on multiple occasions in 2012 without incident, I am not satisfied [the first appellant] would face a real chance of harm if returned to Sri Lanka based on any of his, or his family’s LTTE connections, his ethnicity or his connections to Killinochichi [sic] and Jaffna…

12    The IAA also found that:

(1)    The persons who may remain of security interest to the Sri Lankan government are persons who were high profile former LTTE members or low profile former members who have not undergone rehabilitation.

(2)    The first appellant was not ever an LTTE member.

(3)    Despite the Sri Lankan authorities’ interest in former real or imputed LTTE members, only a small number continue to be held by the government, with less than 50 still reported to be undergoing rehabilitation.

(4)    As at November 2015, only 204 former LTTE members continued to remain in government custody.

(5)    Country information indicates a narrowing Sri Lankan government emphasis on former LTTE members, with the focus now on persons who have been involved in post-war separatism activities and activism. The first appellant claimed no such involvement.

(6)    The first appellant was held in detention for approximately 10 months in 2009/10 and was not identified as an LTTE member during that period.

(7)    The first appellant put forward no evidence to indicate that any member of his family had suffered any harm arising from his brother’s successful claim to asylum in Canada.

13    In reaching its decision, the IAA formed the view that the first appellant had been untruthful in two significant aspects of his account. First, the IAA decided (at para 24 of its decision record) that it was not satisfied that the first appellant was telling the truth about his time in Jaffna in 2010, after leaving an internally displaced persons camp in January 2010.

14    Secondly, at para 27 of its decision record, the IAA found that the first appellant had invented aspects of his history in order to enhance his claims for protection, specifically events that supported the first appellant’s claim to have been “suspected of being an LTTE member in 2011”. This finding relates to the first appellant’s account of events in Kilinochchi, where he moved after living in Jaffna in 2010. The IAA stated, relevantly:

…I am not satisfied that a person who had come to the attention of the CID for LTTE related activities, would have been able to transit Colombo airport immigration section four times in mid-2012 if they were genuinely suspected of LTTE connections, or was being sought by the CID…

15    The appellants commenced judicial review proceedings in the FCCA on 2 May 2018. On 10 October 2019, the FCCA dismissed the appellants’ amended application filed on 1 October 2019. Written reasons for judgment were published on 27 November 2019.

First ground of appeal (Jaffna claims)

16    The Jaffna claims included that the first appellant was detained for three days and tortured by the Jaffna branch of the Sri Lankan Criminal Investigation Department (CID).

17    As expressed in the notice of appeal, the appellants challenged the following four statements made by the IAA prior to rejecting the Jaffna claims:

(1)    Paragraph 23 of IAA decision record:

[T]he [first appellant] has not provided any other detail about this detention, such as why it occurred, where he was held, what the CID wanted. He implies that that it was related to his family’s LTTE connections but does not explain why. I consider his evidence about this period to be vague.

(2)    Paragraph 24 of IAA decision record:

… The [first appellant] claims they were looking for evidence that he had links to the LTTE, but he stated they were harassing him in the first place because they knew he had such links.

(3)    Paragraph 24 of IAA decision record:

… [H]e has not outlined what the consequences of this detention were, for example whether he had any conditions put on him after his release…

(4)    Paragraph 24 of IAA decision record:

… Furthermore, I am not satisfied, that a person who was suffering harassment from the CID, including violent house entry and threats, would afterwards hand himself into the same authorities the next day, if this fear was genuine…

18    At paras 21 and 22 of its decision record, the IAA sets out the following facts concerning the Jaffna claims:

[The first appellant] has claimed that after he was released from the IDP camp in January 2011 he moved to Jaffna. Whilst in Jaffna he opened a jewellery ship in rented premises. One of his employees was named “V”. The applicant (and another employee) lived in the shop, but would visit V’s home for meals, and to shower.

22. The [first appellant] claims that during 2010 the CID became aware of his presence in Jaffna and started to harass V’s family for harbouring a person from an LTTE area [the first appellant]. He claims they visited V’s home [on] two separate occasions entered the premises and searched them for evidence of the [first appellant’s] LTTE connections. They threated V’s wife, and point weapon at her. [The first appellant] describes the men who did this as arriving on motorcycles and wearing masks. He did not know who they were but assumed that the men were from the CID, or the Army. After these events, [the first appellant] reported the matter to the police; he formed the view, that since the Army was looking for him he should just surrender himself to the authorities. The police advised him that he was not wanted for any crime, but that he should return the next day and report to the CID. He claims that when he returned, he was detained and tortured for three days by the Jaffna branch of the CID. He claims that he was beaten, and forced to hold a log between his legs, whilst detained. After his release, he claims to have sold the shop, and returned to Kilinochchi.

19    The IAA’s findings in this passage broadly correspond with the first appellant’s account at paras 16 to 22 of his June 2017 statement, which accompanied the first appellant’s SHEV application. In particular, the IAA records the claim that V’s family was harassed for harbouring a person from an LTTE area. The claim that the CID was searching for evidence of the first appellant’s LTTE connections does not appear in the June 2017 statement. The IAA does not refer to the following aspects of the first appellant’s account in the June 2017 statement:

(1)    Before his detention, a person who was a former LTTE cadre now working for the CID, questioned the first appellant about whether he knew of him and if the first appellant was involved with the LTTE.

(2)    During his detention, the CID continued to question the first appellant’s involvement with the LTTE movement.

20    As to the detention itself, the June 2017 statement states:

21. [The former LTTE cadre] didn’t believe me and detained me for three days. During that time, they tortured me and continued to question his involvement with the LTTE movement. On the third day, they released me with a warning not to leave Jaffna without reported to them first.

Legal principles

21    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, where Crennan and Bell JJ said at [135]:

… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …

22    The appellants referred to the following statement by the Full Court in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47]:

… [F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “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” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 … at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 … at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). 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).

23    More recently, in BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29], the Full Court said:

There is no doubt that just because the alleged errors were factual enquiries does not mean they are precluded from constituting jurisdictional error: CRU18 v Minister for Home Affairs [2020] FCAFC 129 at [29]–[31]. However, an erroneous finding of fact will typically not amount, in and of itself, to jurisdictional error: CRU18 at [29] citing NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] (Heerey, Nicholson and Selway JJ). A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647 –648 [130] (Crennan and Bell JJ)). Further, in order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision maker’s ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ); CRU18 at [37]. Where the impugned finding is but one of a number of findings that independently may have led to the IAA’s ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55]; CRU18 at [35]–[37].

Appellants’ first argument

24    The appellants’ first argument is directed to para 23 of the IAA’s decision record, set out at [17(1)] above. The appellants argue that, in this paragraph, the IAA failed to take into account the first appellant’s evidence as follows:

(1)    The conversation with K, mentioned in the first appellant’s June 2017 statement, which shows that the reason the first appellant was detained was because the CID wanted to make sure that he had no connection whatsoever with the LTTE.

(2)    The evidence in the June 2017 statement that the first appellant was living in Pandatheripu, Jaffna and that he reported to the local police station.

(3)    The evidence in the June 2017 statement that the CID wanted to ensure that the first appellant had no links to the LTTE.

25    The FCCA judge concluded (at [48] of his Honour’s reasons) that “what the IAA said at paragraph 23 was proper and that it had taken into account all of what the [first appellant] had said. I cannot see the description of it being vague is an improper description.”

26    Paragraph 23 of the IAA decision record suggests that the IAA may have overlooked the evidence that the first appellant gave concerning why he may have been detained and what the CID wanted. As the appellants observed, the first appellant addressed these issues in his evidence to the effect that the first appellant was detained because K was not satisfied with his answers to questions about LTTE involvement and the CID wanted to question him further.

27    However, para 22 of the IAA decision records the first appellant’s claim that the CID had started to harass V’s family because he was a person from an LTTE area; as well as the claim that the CID was seeking evidence of the first appellant’s LTTE connections. In that context, and having regard to the balance of para 21 and para 22, the IAA’s criticism of lack of detail about the detention is properly read as directed to the absence of a more specific explanation of why it occurred than simply because the CID wished to question the first appellant about his LTTE involvement. Similarly, the criticism that there was a lack of detail about where the first appellant was held is not answered by the evidence referring to Pandatheripu, Jaffna and the fact that the first appellant reported to the local police station, where the IAA found that the claimed detention and torture was “by the Jaffna branch of the CID”. On a fair reading of the decision record, the IAA’s assessment was that the claim of three days’ detention and torture required more detail than the first appellant supplied in order for the IAA to accept it as credible.

28    It was open to the IAA to conclude that the evidence about the first appellant’s detention was lacking in detail. It was also open to the IAA to conclude that the evidence of the detention and the surrounding circumstances was “vague”. The IAA’s stated examples of gaps in the detail of the evidence do not reveal a lack of logic or rationality, or a lack of appreciation that the first appellant attributed the detention to suspicion that he was connected with the LTTE.

29    Accordingly, I am not persuaded that the FCCA judge erred in failing to accept that para 23 of the IAA’s decision record reveals jurisdictional error in the nature of illogicality, irrationality or unreasonableness.

30    In submissions, the appellants referred to another criticism by the IAA of the Jaffna claims for vagueness and a lack of plausible detail. This was the example (at para 24 of the IAA’s decision record) that:

…when the [first appellant] was asked when this period of detention occurred, he claimed it occurred on a Wednesday, Thursday, Friday, but was unable to determine what month it occurred or even to remember, whether it was in the early or late part of 2010.

31    The appellants submitted that it was illogical, irrational or unreasonable for the IAA to cite the first appellant’s inability to remember the precise day and month of the claimed detention as an example of evidence that was vague and lacking in plausible detail, given that the incident occurred more than six years before the interview, and was a traumatic event the timing of which the first appellant reasonably had difficulty recalling.

32    I do not agree: this is a matter about which reasonable minds could differ. Of course, the IAA could have reasoned in the manner contended for the appellants and the Procedures Advice Manual 3: Refugee and Humanitarian – Refugee Law Guidelines, referred to by the appellants, could support that reasoning. However, it was open to the IAA to find that the detention was a matter of such significance that details of timing of the kind identified by the IAA would probably be remembered, and that such a failure of recollection cast doubt on the first appellant’s claims.

33    In submissions, the appellants next referred the IAA’s finding (also at para 24 of the IAA’s decision record):

… The [first appellant] claims they were looking for evidence that he had links to the LTTE, but he stated they were harassing him in the first place because they knew he had such links.

34    I accept that the IAA appeared to perceive an inconsistency between the claim that the CID already “knew” the first appellant had links to the LTTE, but also went searching for evidence of these links.

35    It would have been open to the IAA to conclude that these claims were not inconsistent: that the CID might have sought evidence to implicate the first appellant with the LTTE even though they already understood him to be implicated, perhaps to persuade a third party. However, it was not illogical or irrational to perceive an inconsistency arising from the general proposition that a person who is said to know a fact is unlikely to seek evidence of that fact.

36    The appellants next referred to the following finding (again at para 24 of the IAA’s decision record):

In his SHEV application, he says that they were SLA [Sri Lankan Army] personnel, at interview he said he did not know who they were, but thought they were the CID.

37    The appellants contended that the relevant material in the SHEV application comprised:

(1)    Para 19 of the first appellant’s June 2017 statement, which states:

The harassment was severe and the CID/army ransacked [V]’s house twice and held a gun to his wife’s head threatening them for assisting a person of suspicion in their home…

(2)    The following statement in a supporting submission for the appellants’ SHEV application:

[The first appellant] maintains that he was never actively involved in the movement but claims his family were well known as an LTTE family and experienced many problems with the Sri Lankan Army (SLA) and the Criminal Investigation Department (CID) camp as a result.

[The first appellant’s] work history as a Tamil businessman and the LTTE’s control over his business license brought him to the attention of the [CID] during and after the war as he explains in his enclosed statement.

38    The appellants also noted that, in the delegate’s interview of the first appellant, the delegate framed his question concerning harassment by reference to the CID, as follows:

Q: … now you said you were harassed by the CID and after 10 months you had to sell the shop. Alright, now the CID would have a record of your release in 2010. What sort of harassment were you receiving?

A: They suspected me as an LTTE. I haven’t told them any details about my training.

39    The appellants submitted that there was no relevant inconsistency in the first appellant’s evidence: his evidence was that he had problems with both the SLA and the CID and, where he was unsure of which organisation specifically had harassed him, the first appellant referred to them jointly.

40    Read in context, the discrepancy identified by the IAA, as to whether “they” were the SLA or CID, appears to relate to three men who entered the first appellant’s jewellery store. The claim that three people came to the first appellant’s shop and raided it is mentioned in his Irregular Maritime Arrival Entry Interview Record. In that record, the people are not identified, except that the first appellant said that he went to the police and the army and they denied any part in the raid.

41    In the June 2017 statement, the first appellant referred to selling the shop because of harassment by the CID (as opposed to the SLA). The submissions do not identify any evidence that the first appellant claimed in his SHEV application (or elsewhere) that the three men who entered the jewellery store and harassed him were SLA personnel. In his June 2017 statement, the first appellant referred to army harassment, but this was directed to V’s family and V’s house.

42    Nor do the submissions identify the evidence where the first appellant said that he did not know who the men were. The transcript of the delegate’s interview records that, in relation to an attack upon V’s house, the first appellant expressed doubt about the identity of people who ransacked V’s house in the following passage:

Q: What time during the day did they come to ransack the house?

A: At about 6.30, 7 in the evening. 3 motorbikes and there was no number plates in the motorbikes and they have concealed their face. His face was there, and they went and asked about me and they threatened her. Only during the second visit they threated his wife at gun point.

Q: Alright, not is they had their faces concealed how do you know it was not somebody coming looking for jewellery to steal?

A: Next day, CID asked me to go to camp for enquiry, then only I realised that they were CID.

Q: Ok so they admitted that they’d been to the house twice and ransacked it.

A: No, they didn’t agree. They didn’t accept that they ransacked the house at the same time they didn’t take anything from my room as well.

43    On this evidence, I accept that the IAA made an error in its findings as to the first appellant’s evidence concerning the identity of the three men who entered the store, and in finding that the first appellant had given inconsistent accounts about their identity.

44    Finally, the appellants referred to the IAA’s finding that the first appellant had “not outlined what the consequences of his detention were, for example whether he had any conditions put on him after his release”. The appellants submitted that this finding overlooked the following evidence:

(1)    In the June 2017 statement, the CID released him with a warning not to leave Jaffna.

(2)    In his SHEV interview, the first appellant suffered injuries requiring hospital treatment, particularly knee pain.

(3)    In the June 2017 statement, “[o]ne week after I was released, I sold everything and went to Killinochchi because I no longer felt safe in Jaffna”.

45    I accept that, on a fair reading of the IAA’s decision record, it has overlooked (1) and (2). As to (3), I note the IAA’s statement that “[a]fter his release, [the first appellant] claims to have sold the shop, and returned to Kilinochchi”.

Appellants’ second argument

46    The second argument concerns the IAA’s disbelief of the first appellant’s claim that, having suffered harassment from the CID, including violent house entry and threats, he handed himself into the CID the following day. The IAA did not consider that the first appellant would have done this if he genuinely feared harm.

47    The appellants referred to the evidence in the June 2017 statement that the CID visited the first appellant at his shop and told an employee that the first appellant was to report to the CID office as soon as possible. The appellants also referred to the first appellant’s evidence at interview that he reported to the CID on the basis of fear and because the CID had threatened his employee’s wife when asking her about the first appellant. The relevant passage was as follows:

Q: I’m asking you about [V]. You said that you didn’t know anything about his background, you said that the reason that they ransacked his house was because of you but how do you know it was because of you or it wasn’t something to do with something in his background?

A: After that CID detained me for 3 days.

Q: In connection with what?

A: When CID came and enquired me, I was so frightened and then I went to police and made a report to say that they have ransacked the house.

Q: Ok, why would you make the report if it was not your house?

A: Because they went and threatened his wife by asking me.

Q: Sorry, they what?

A: They went and threatened his wife and they were asking about me to her.

48    The appellants submitted that the evidence was not that the first appellant “handed himself in”. Rather, the first appellant reported to the CID in accordance with an instruction given to his employee with which he felt obliged to comply.

49    The FCCA judge rejected the appellants’ argument on this point, giving the following reasons:

[50] The [first appellant] submits that [he] was in no position to disobey the CIDs request that he report to them the next day and that had he not reported as directed, he would have put himself in greater danger of harm from them. That is a submission that does not have any evidentiary basis whatsoever. It is something that has come only from the submissions. It was not part of the evidence. The [first appellant] had never said anything of that nature.

[51] And furthermore, the submission is somewhat contradictory given the [the first appellant’s] evidence later on, he actually did disobey requests by the authorities and there were not any consequences. For example, the [first appellant] ends up saying that nothing happened after his release other than he was told not to leave Jaffna without reporting to them that he was going to leave. The evidence is that he did leave Jaffna without reporting to them and went back to Kilinochchi. The submission that the IAA has not looked at the [first appellant] being in no position to disobey the request has no merit whatsoever.

50    The IAA’s finding that the first appellant handed himself in is arguably inconsistent with the first appellant’s version of events. However, it was open to the IAA to characterise the first appellant’s asserted attendance at the CID in that way, because he was only instructed to report to the CID office, as opposed to being compelled to report by arrest or threat of violence. Further, it was open to the IAA to find that the asserted attendance was inconsistent with a genuine fear of harm from the CID.

51    Accordingly, I do not accept that there was any legal error in the IAA’s assessment of this aspect of the Jaffna claims.

Conclusion

52    The substance of the first appellant’s claims about his time in Jaffna was that he had been harassed, detained and tortured by the CID and or the SLA while in Jaffna, on account of suspected LTTE connections. The IAA addressed the first appellant’s claims in substantial detail and ultimately relied on the following matters for the ultimate finding that the Jaffna claims were invented:

(1)    A lack of detail about the asserted three day detention.

(2)    The first appellant’s account of his time in Jaffna was vague and lacked plausible detail.

(3)    The first appellant’s inability to determine the month in which the detention occurred or to remember whether it was in the early or late part of 2010.

(4)    The implausibility of persons searching the first appellant’s premises for evidence that he had links to the LTTE, when the first appellant stated that they were harassing him because they knew that he had such links.

(5)    The first appellant’s claim that the three men who entered his store were SLA personnel, in contrast with a later statement that he did not know who they were but thought they were the CID.

(6)    The failure to outline the consequences of the three day detention.

(7)    The implausibility of the claim that the first appellant handed himself into the CID the day after suffering harassment from the CID in the form of violent house entry and threats.

53    The finding that the first appellant’s claims were invented is a serious one, and was a harsh one to make on the papers. I have found that the IAA made factual errors in making findings (5) and (6) above. However, having regard to the several other factual matters that supported the IAA’s ultimate finding, it was open to the IAA to form a negative view as to the credibility of the first appellant’s account, to fail to be satisfied that the first appellant was telling the truth and to find that the first appellant had invented important aspects of the Jaffna claims to enhance his claims for protection.

54    In any event, the IAA’s finding that it was not satisfied that the first appellant would face a real chance of harm if returned to Sri Lanka based on LTTE connections was supported by several unchallenged findings as well as the IAA’s consideration of all of the evidence. In those circumstances, the IAA’s factual errors were not material to the IAA’s ultimate conclusion.

55    Accordingly, I am not persuaded that the FCCA judge erred in failing to find jurisdictional error by the IAA on this basis.

Second ground of appeal

56    The second ground of appeal is based on the proposition that the IAA failed to make a finding on one of the appellants’ claims for protection, thereby denying the appellants’ procedural fairness or failing constructively to exercise its jurisdiction: cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE) at [55].

57    The alleged claim was that first appellant feared harm, if forced to return to Sri Lanka, on the ground that he had not previously identified himself as a person who had undertaken weapons training and had manned checkpoints carrying weapons with instructions to shoot the Sri Lankan security agencies who tried to pass the checkpoint.

58    The appellants’ argued that the first appellant made this claim at his interview with the Minister’s delegate in a passage set out at [58] of the FCCA judge’s reasons. The relevant passage is as follows:

Delegate: Okay. And why do you think you would have a problem as a failed asylum seeker?

Applicant: I was – I left Jaffna and I left many times because of those things. Definitely they will think that I am having some connection with LTTE. Even if they start inquiring me, it will be a very severe one and they will torture to the unknown extent. When I was in camp they told – they asked us to report to them even if someone has undergone one day’s training, but I never told them the training I had underwent.

Delegate: Okay. So quite a long time has elapsed since the war or the conflict finished, so why do you think information about the short time that you worked for the LTTE would come to light now?

Applicant: Even for ordinary people who didn’t have any connections, they are being harassed, but if they know that I have on training, I underwent training, and the reason for the training was only to shoot them, so they know that.

Delegate: They know that?

Applicant: Only to shoot them we were trained.

Delegate: Okay, but how would they know that if they haven’t detailed you or held you in a rehabilitation camp at the end of the conflict?

Applicant: Are you asking about my training?

Delegate: You’re saying that they know about what your – you’ve been doing. What I’m saying is if they know what you’re doing, why didn’t they detain you and put you through rehabilitation like they did for all the other people that they knew were with the LTTE?

Applicant: If they again start inquiring me, they will torture me to the maximum possible extent and they will take me to fourth floor and they will torture me and they may even kill me.

Delegate: Okay.

Applicant: Even if I say something, he will think that I’m hiding something.

59    The IAA accepted that the first appellant had been required to attend two weeks of compulsory LTTE weapons training and that he was compelled to work at a checkpoint for two weeks, where he and other checkpoint staff were issued with rifles.

60    The IAA did not consider whether the first appellant claimed to fear harm on the basis that he had not previously identified himself as a person with these experiences.

61    The FCCA judge did not accept that the first appellant had made the claim identified in the second ground of appeal, saying:

[60] It does not seem to me that that is a claim that fairly arises from what has been said by the [first appellant] …

…

[63] It seems to me that there really has been no express or implied claim that has arisen. The [first appellant] did not say that he would come to attention of the Sri Lankan authorities for not having acknowledged his training when asked. He raised this as a reason why, if he were to come to the attention of the authorities, his harm would be more severe. The IAA had looked at whether or not he would face harm as a result of the LTTE connections.

[64] The IAA … looked at whether or not the [first appellant] would come to the attention of authorities, or whether there would be consequences to the [first appellant], because of his LTTE connections. The IAA made a factual determination that he would not come to the attention of the authorities for that reason. When one has a look at what the [first appellant] has actually said, the claim he makes is that this fact may become known if …there are inquiries made with him and that those consequences would be severe. The IAA has said that they were not satisfied that those inquiries would be made in the first place. So this situation does not arise.

[65] It cannot be said that this is a separate claim. It is part of the same claim that the [first appellant] had made that he would come to the attention of the authorities and it was a claim that was dealt with by the IAA…

62    The Minister did not dispute that a failure by the IAA to address a substantial, clearly articulated claim would amount to a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [23]-[24]; NABE at [55]-[63]. However, the Minister noted, the IAA is only required to consider claims made by an applicant (and their essential integers or components) that are either the subject of substantial clearly articulated argument, relying on established facts, or that clearly emerge from the materials: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18].

63    The appellants submitted that the identified claim clearly arose on the material before the IAA: it was “abundantly clear from what was said…at the interview”.

64    I do not agree. In the relevant portion of the interview, the first appellant was explaining his fear that he would be subjected to interrogation and torture in Sri Lanka. That fear was expressed to arise because “they will think that I am having some connection with LTTE”. At its highest, the first appellant’s claim was that he might be interrogated in a way that would cause him to divulge his weapons training and, additionally, that he had not divulged the weapons training when the first appellant was in camp. However, there was no claim (either clearly articulated or clearly emerging from the materials) that the prospect of harm might arise from knowledge on the part of any person or agency that the first appellant had concealed his weapons training in the past, or otherwise because of the non-disclosure of his weapons training when asked to report to the authorities in the camp.

65    Thus, the FCCA judge did not err in failing to find that the IAA erred in the manner identified in the second ground of appeal.

66    The appellants submitted that his claim was similar to that made in ADN17 v Minister for Home Affairs [2019] FCA 1037 (ADN17). In that case, ADN17 claimed that:

[39] … [A]s a failed asylum seeker returned to his village, he would be more conspicuous and likely to be questioned again about his LTTE involvement in circumstances where it was known in his village that he was taken as a child soldier, but had failed (in his words) to “front up” when previously questioned by the CID in 2010, as the Authority found he had been. He was also claiming he would be treated differently by the authorities because of his failure to confess his LTTE involvement at an earlier stage.

67    However, as described, ADN17’s claim was explicitly directed to the risk of harm arising from an earlier failure to confess LTTE involvement. At [26], the claim was said to have described “in express terms that if the appellant is forced to return to Sri Lanka he will be detained either at the airport or on return to his village and will be targeted because of his failure to identify himself as a person who has been associated with the LTTE…the appellant did not “turn himself in” as an LTTE member, hence his claimed fear that not only his involvement, but his attempt to hide his involvement, will come to the attention of the authorities and will exacerbate the way he will be treated”.

68    The appellants submitted that, on the FCCA judge’s characterisation of the claim as “a reason why, if he were to come to the attention of the authorities, his harm would be more severe”, the IAA was obliged to consider the claim because the IAA was required to assess the nature and effect of the identified feared harm and its failure to do so comprised jurisdictional error: see AJB18 v Minister for Home Affairs [2020] FCA 381 (AJB18) at [69]. In AJB18, the issue was the manner in which the Tribunal took into account harm that might be faced by a child stemming from the potential lack of evidence of citizenship, including the ability to access certain government services or rights available to other citizens with proof of citizenship.

69    In this case, the IAA was not satisfied that the first appellant would face a real chance of harm if returned to Sri Lanka based on any of his, or his family’s LTTE connections, his ethnicity or his connections to Kilinochchi and Jaffna. Having found that there was no real chance of any harm based on the first appellant’s LTTE connections, there was no requirement for the IAA to consider the first appellant’s claims as to the severity of that harm. In contrast, in AJB18, having found that the child would be affected by the absence of citizenship documentation, the Tribunal was required to address the particular claims as to deprivation.

70    The appellants argued that the IAA’s failure to advert to the first appellant’s fears of harm, expressed in the delegate’s interview, amounted to a failure to address a contention which, if accepted, might establish a well-founded fear of persecution for a reason under the Refugee Convention: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]. As explained above, to the extent that the asserted fear was part of the claim to fear harm by reason of LTTE connections, that claim was sufficiently addressed.

71    To the extent that the first appellant’s statements at the delegate’s interview relate to the separate claim to fear harm as a failed asylum seeker, that claim was also sufficiently addressed. The claim was rejected on the basis of the following findings:

(1)    There is evidence that thousands of asylum seekers have returned to Sri Lanka since 2009 with relatively few allegations of torture or mistreatment.

(2)    DFAT has reported that upon arrival in Sri Lanka, returnees will be met by Sri Lankan government officials in order to undergo immigration processing, principally aimed at determining the identity of the returned person.

(3)    DFAT assesses that all returnees, regardless of ethnicity or religion are treated according to standard procedures and are not subject to mistreatment during processing at the airport.

(4)    The evidence does not indicate that the first appellant would face a real chance of harm as a returning Tamil asylum seeker.

72    Accordingly, the second ground of appeal fails.

Conclusion

73    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    5 November 2020