Federal Court of Australia

CPQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 329

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 21 May 2019, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 26 August 2016. The IAA had affirmed a decision made by the delegate of the respondent Minister not to grant the appellant a Safe Haven Enterprise visa. The judgment and reasons of the Federal Circuit Court has the citation CPQ16 v Minister for Immigration & Anor [2019] FCCA 1739.

2    The appellant is a citizen of Sri Lanka. He is also a Tamil and a Hindu. He would appear to have arrived in Australia on 17 August 2012.

3    The appellant applied for a subclass 866 Permanent Protection visa on 25 July 2013. By letter dated 21 August 2015, however, an officer of the Minister’s Department advised him that this application was invalid and that he might apply either for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. The appellant chose to apply for a Safe Haven Enterprise visa on 18 November 2015.

4    The appellant’s application for a Safe Haven Enterprise visa was accompanied by a letter dated 18 November 2015 and prepared by Vrachnas & Co Lawyers. This letter recorded that the appellant feared harm from the Sri Lankan Government and affiliated paramilitary organisations due to his background and past experiences with the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka. Specifically, the appellant claimed that his relationship with two of his cousins who were involved with the LTTE (referred to below as “P” and “A”), his perceived links to or imputed support for the LTTE, as well as his status as a Tamil or a failed asylum seeker who illegally departed Sri Lanka meant that he was at risk of being detained indefinitely, tortured and possibly killed if he was returned to Sri Lanka.

5    The appellant’s claims were also detailed by him in his statutory declarations of 12 November 2015 and 25 July 2013. In these declarations, he said:

    In around 1990, he had fled Sri Lanka with his family due to fighting in his home area.

    When he and his family returned to Sri Lanka in about 1995, the United Nations High Commissioner for Refugees (UNHCR) arranged for them to be placed in a refugee camp. While he was in the camp, the Sri Lankan army would randomly take away Tamils for questioning. Once the appellant was caught in such a “round up” of Tamils but a UNHCR worker intervened and prevented him from being interrogated and detained.

    The appellant left the camp in about December 2001 and moved to a town in the North to further his studies. During this period he rented a room with his cousin (P).

    From around 2006, the LTTE began to forcibly recruit Tamils in his area, and to avoid being recruited, the appellant married in April 2006. He then moved to a different town in the North.

    In 2006, another of the appellant’s cousins (A), a worker in an LTTE camp, was killed in an attack on the camp. During this same period, P joined the LTTE. The appellant states that he lost contact with P for six months.

    At the end of 2006, the appellant heard P was a “training master” at an LTTE camp. From then to around February 2007, the appellant regularly visited P at an LTTE training camp.

    In February 2007, P, who had fled the area in which he was fighting after the Sri Lankan army had taken control of it, requested that the appellant pick him up and take him to a town in the North. The appellant did so.

    The Sri Lankan army subsequently detained P’s father and questioned him about his son. The father was released when his son was captured.

    Around February 2007, the Sri Lankan army captured P, and tortured and detained him for two months. The appellant understood that during this time P and the Sri Lankan army had discussions about his release and travelling with the appellant to India.

    In or around March 2007, while P was detained, P’s mother was shot and killed.

    P was released in April 2007 but was shot and killed several months later.

    In around April 2008, the appellant found out that men had been looking for him. They had gone to his neighbour’s home, by mistake, and had pointed a gun at the appellant’s neighbour, preparing to shoot him. The men then left a note at the appellant’s house and told the appellant’s mother-in-law that the appellant was to report to the Criminal Investigation Department (CID).

    The appellant fled to Qatar on a work visa in around May 2008 and remained there until 2010. He returned to Sri Lanka once during this period, and stayed in Colombo for approximately 45 days before returning to Qatar. The appellant permanently returned to Sri Lanka in February 2012.

    In May 2012, a black truck came to the appellant’s home. The appellant fled before the men from the truck broke into the appellant’s house and threatened his wife. The appellant heard from his neighbours that the same truck had been near his home the previous night. After this incident, the appellant left his home and moved around until he was able to depart Sri Lanka by boat.

    Since the appellant’s departure, his wife has received threats from the agent who arranged his departure that the appellant’s child will be abducted if his wife does not pay the agent more money.

6    The appellant attended an interview with an officer of the Minister’s Department on 20 January 2016. He was later notified by letter dated 13 July 2016 that a delegate of the Minister had refused his application. By letter dated 15 July 2016, the appellant was notified that the decision to refuse his visa application had been referred to the IAA.

The IAA’s decision

7    The appellant (then the referred applicant) wrote to the IAA and his migration agent made written submissions on his behalf by letter dated 2 August 2016. By letter dated 26 August 2016, the appellant was informed that the IAA had affirmed the delegate’s decision.

Information before the IAA

8    Under the heading “Information before the IAA”, the IAA stated:

I have also had regard to a statutory declaration by the applicant accompanied by a submission provided from his representative provided to the IAA. These together provide arguments as to why the delegate’s decision was wrong and discuss country information which had already been before the delegate. This further material does not constitute new information and I have accordingly considered it.

(Emphasis added)

9    The IAA proceeded to summarise the further submissions provided by the appellant’s legal representative, under the heading “Applicant’s claims for protection”:

Written submissions provided to the IAA argued that the delegate had made factual findings concerning P[]’s role within the LTTE as both training master and combatant, which should lead to a conclusion that P[] held a position of seniority within the LTTE, and that country information supported the applicant’s claim that he faced a real chance of serious harm due to this connection. The submissions argued that the finding that P[] was not in a senior position within the LTTE went on to influence the delegate’s credit findings in relation to the 2008 and 2015 home visitations by the CID.

Imputed political opinion as LTTE supporter through association with former LTTE cadre and membership of family

10    The IAA accepted that the appellant was close to his cousin P; that this was broadly known; and that P had been involved with the LTTE as a trainer/physical instructor and later as a combatant (at [25]). The IAA also accepted that P’s father and P were later detained by the Sri Lankan army and that P and his mother were later shot and killed by persons unknown (at [26]).

11    The IAA did not accept, however, that the appellant had visited P in the LTTE camp or that he had helped P escape the Sri Lankan army due to concerns in relation to the appellant’s chronology by reference to country information (at [26]). The IAA declined to accept a submission by the appellant’s migration agent that some discrepancies between the appellant’s narrative and the country information were merely attributable to understandable errors in the appellant’s timeline. The IAA stated that (from [21]):

… At the earliest therefore, even if the applicant was mistaken about specific dates of events following the uncontentious date of his wedding in April 2006, this places the time the applicant commenced visiting his cousin P[] towards the end of 2006. The country information cited above is clear that by the end of 2006, the battle of Sambur had already long since concluded, with the army retaking the town in early September 2006.

Whilst I am prepared to accept that the applicant may make mistakes concerning particular dates when certain events occurred… I do not consider it plausible that the applicant would have also made a mistake about a particular timeframe of six months, between when his cousin joined the LTTE following the applicant’s marriage and when the applicant re-established contact with P[] and started visiting him…

… On their own internal chronology, the applicant’s claims in relation to the visits and to the rescue of his cousin can only be placed well after the time that country information indicates that the battle of Sambur had long since concluded.

12    Accordingly, the IAA did not accept that the appellant would be imputed as supportive of the LTTE on the basis of his claims to have visited P in the LTTE camp or to have assisted him to escape the Sri Lankan army.

13    The IAA also relied on the December 2012 Guidelines published by the UNHCR, which it said indicated that only Tamils with certain profiles risked being persecuted in contemporary Sri Lanka on account of LTTE affiliations, stating at [27]:

…I have considered whether the applicant will now be imputed with a pro LTTE profile as a person who had been a close cousin of P[], a former LTTE cadre who had undertaken a training role and a role as a combatant, and who had been killed by unknown persons; and whether such an opinion might be imputed in relation to the applicant’s other cousin A[].

Country information contained in the current UNHCR eligibility guidelines concerning asylum seekers from Sri Lanka published in December 2012 indicates that Tamils with particular profiles risk being persecuted in contemporary Sri Lanka on account of LTTE affiliations, depending on the individual circumstances of the case. Examples of such profiles include:

…

2.    Former LTTE combatants or “cadres”;

…

4.    Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

…

6.    Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

14    It ultimately concluded that the referred applicant (now the appellant) did not have a profile that would attract ongoing adverse attention from the Sri Lankan authorities, “either by reference to [his] connection with his late cousin … or otherwise” (at [36]). Amongst other things, it gave weight to the fact that the relevant cousins had been dead for some eight or nine years and that P had ultimately been released by the Sri Lankan army, which indicated that P himself was no longer of any particular interest to the authorities in 2007 (at [29]–[30]). It referred to the appellant’s own evidence that P would not have identified him during his interrogation (at [31]). This led it to find that there was “no basis for any motivation on the part of the Sri Lankan authorities … for visiting the applicant’s neighbours home in April 2008 when the applicant’s claims they were searching for him” (at [33]). It also gave weight to the fact that he was able to obtain a passport and travel to Qatar without incident (at [34]).

15    Further, the IAA rejected the appellant’s claims about the 2008 incident for the above reasons and because of certain inconsistencies it found in the appellant’s claims. These inconsistencies were, first, that in an earlier written claim made in 2013 the appellant claimed that his neighbour had a similar appearance to him, whereas in his oral interview with the delegate the appellant stated that he and his neighbour were of different height and complexion. Secondly, the appellant claimed in his interview that these men had not threatened his neighbour, although in his claim of 2013 the appellant wrote that they had pointed a gun at his neighbour (at [33]).

16    As regards the appellant’s claim that in 2012 two men had forcibly entered his house, the IAA did not accept that, even if this had happened, the event was connected with the appellant’s relationship with his cousin P. The IAA noted that P had been dead for four years at this point, and the appellant had not claimed that such persons had revisited the home (at [35]). Also, the IAA did not accept that the CID visited the appellant’s wife in 2015, or that they subsequently contacted her (at [36]). Although the IAA accepted that the appellant’s wife sent a parcel to the appellant in January 2016, in the absence of supporting country information it did not accept that the appellant’s wife was told by the postal authorities that this parcel had been confiscated (at [37]).

17    Accordingly, the IAA found that the appellant had no real chance of persecution on the basis of an imputed pro-LTTE political opinion (at [38]).

Tamil ethnicity

18    The IAA further held that the country information indicated that Tamils did not face treatment amounting to serious harm in contemporary Sri Lanka on account of their ethnicity alone (at [39]).

Failed Tamil asylum seeker who illegally departed Sri Lanka

19    Reference to this country information led the IAA to find that the appellant did not face a real chance of serious harm for being a failed Tamil asylum seeker or for departing Sri Lanka illegally. It was not satisfied that the appellant was a person with a profile that meant he might be harmed. The IAA held that “the provisions and penalties of the [Immigrants and Emigrants Act 1949 (Sri Lanka)] are laws of general application that apply to all Sri Lankans equally”. It referred to DFAT’s country information and held that it was “satisfied … that the applicant has no identification concerns, or criminal or security concerns that would raise the concern of [Sri Lankan] authorities”. The IAA found that on return to Sri Lanka, the appellant “would likely be charged and fined under the [Immigrants and Emigrants Act 1949] and then released”. It added (at [49]–[50]) that:

…In the event that the applicant elected to plead not guilty to the offence … he would either be granted bail on personal surety or a family member. There is no suggestion [he] was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face any chance of imprisonment, but it is likely that he will be fined. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face imprisonment.

…I have considered whether a detention of several days would constitute serious harm. While I accept that conditions in Sri Lankan prisons are poor due to a lack of resources, overcrowding and poor sanitation, I find that any questioning and detention the applicant may experience would be brief and would not constitute serious harm as…defined in the Act.

Conclusion

20    The IAA was therefore not satisfied that the appellant had a well-founded fear of persecution if he returned to Sri Lanka in the reasonably foreseeable future; that the appellant did not fall within the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth); and therefore did not meet the criterion in s 36(2)(a) of the Migration Act (at [55]). Additionally, the IAA was not satisfied that there was a real risk that the appellant would suffer significant harm if removed to Sri Lanka and therefore found that he did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act (at [65]).

The Federal Circuit Court Proceeding

21    The appellant filed an application for judicial review of the IAA’s decision in the Federal Circuit Court on 15 September 2016. This application set forth the following grounds:

1.    The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.

2.    The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent’s decision that he was not a refugee, and an oral interview can give an insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.

3.    I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

22    The appellant appeared in person at the hearing before the primary judge on 21 May 2019, assisted by a Tamil interpreter (at [11]). The primary judge delivered judgment that day, dismissing the application.

23    The appellant made submissions concerning the nature of the evidence before the delegate and the IAA, and contested the IAA’s factual findings. The primary judge accepted the Minister’s submission that “the bulk of the submissions…amount to an invitation to traverse into the merits of the matter” (at [14]).

24    The primary judge rejected ground 1: see [21] above. His Honour held that the IAA considered all the material before the delegate as well as the statement and submissions provided by the appellant (through his migration agent) (at [19]). His Honour also held that the IAA was under no obligation to ask the appellant to comment on any potentially adverse information. There was, so he said, no discernible failure to grant the appellant procedural fairness (at [20]).

25    The primary judge also rejected ground 2, on the basis that the IAA was under no obligation to grant the appellant an interview. The primary judge recognised that the appellant indicated that the only manner in which he could give evidence was orally, and review of the IAA’s decision indicates that the appellant’s credibility was in issue. His Honour observed that this in itself was not enough to compel the IAA to get new information under s 473DC of the Migration Act citing DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222. Such a compulsion was viewed by his Honour to be antithetical to the fast-track review process being applied in the appellant’s case, which was premised on a process conducted on the papers. His Honour also noted that the appellant was given an opportunity to present his case orally before the delegate (at [21]–[22]).

26    The primary judge held that ground 3 was not a proper review ground and did not expose a jurisdictional error (at [24]).

Proceeding in this Court

27    The appellant filed a notice of appeal on 11 June 2019. There were three grounds of appeal, which read as follows:

1.    The Federal Circuit Court erred in not finding that the Second Respondent (‘IAA’) erred by failing to consider submissions and claims that the [appellant] would suffer serious harm or significant harm as a person of Tamil ethnicity.

PARTICULARS

(A)    The Appellant made a number of claims about why he would be harmed on return to Sri Lanka. One of these claims was that he would be harmed because of his knowledge about information through family members that supported [the] LTTE;

(B)    This claim formed part of his cumulative claims, but had a unique dimension.

(C)    That the Appellant would spend some time in detention by virtue of having left Sri Lanka illegally.

2.    The IAA failed to consider the Appellant’s individual claims made in his Application.

(A)    The Appellant made a number of claims about why he would be harmed on his return to Sri Lanka. One of these claims was that he would be harmed because he and his family members were associated with the LTTE.

(B)    The IAA failed to consider the facts applicable to the Appellant individually to assess eligibility on its own but considered it in line with the Country Information. The IAA rejected the Appellant’s claims in relation to failed asylum seeker taking into account the external report of DFAT and the legislation. By failing to apply the legislation the IAA made a jurisdictional error by not considering the significant harm that would give rise to the Complementary Protection Criteria.

3.    The Federal Circuit Court erred in not finding that the Second Respondent erred by failing to consider the relevant category of the UNHCR Guidelines about Tamils at risk of harm in Sri Lanka due to sheltering or supporting LTTE personnel or having family links with a person who sheltered or supported LTTE personnel. Further and alternatively, the IAA erred by misapplying the ‘real chance’ test.

PARTICULARS

(A)    The Appellant’s advisor []submitted [to the IAA] specific country information about the applicability of the UNHCR guidelines to the [appellant’s] case. While the IAA stated they had regard[] [t]o the UNHCR information, there was no consciousness or consideration of the category which fit the appellant. That information was not properly considered as required at law and so the ‘review’ [of] the IAA was affected by jurisdictional error.

(B)    Further and alternatively, in order to properly apply the ‘real chance’ test it was necessary to do more than look at what happened in the past. In order to properly consider what would happen in the future, the IAA ought to have had regard to the UNHCR Guidelines.

28    On 25 June 2019, the second respondent filed a submitting notice save as to costs.

The parties’ submissions

29    The appellant’s written submissions travelled well beyond the grounds of the appeal, substantially focussing on the criteria for protection and complementary protection under s 36(2) of the Migration Act, and also referring to various treaties. In this respect, the Minister noted, in his written submissions, that “the [a]ppellant’s written submissions refer to case law and legislation that, in large part, has little or no relevance to the matter or the grounds of appeal as alleged”.

30    The appellant made three potentially relevant submissions referring to the IAA’s decision: first, that “[b]y failing to consider whether the [a]ppellant and his family falls within the definition [of] complementary protection, the IAA has committed a jurisdictional error”; secondly, that the “danger of harm that the [a]ppellant would suffer was not considered by the IAA”; and thirdly, that “[t]he IAA did not properly analyse or consider whether or not the feared treatment [of] the [a]ppellant would constitute discrimination”. With respect to this last submission, the appellant cited Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 217 CLR 387.

31    At the hearing, the appellant made brief submissions consistent with this latter submission:

The whole decision was made based on reports provided by certain organisations or from certain countries or the Sri Lankan government. It’s not based on what I am saying or my personal circumstances…

In general, Tamils are being persecuted but in particular, people who are associated with LTTE were being killed by unknown people…

According to their claims, they say that I do not face any persecution. I would like to say I am a Tamil, and not only that, my family has had associations with LTTE and because of these two reasons, I will definitely face problem[s] in my country…

32    In written submissions, the Minister contended that none of the grounds on which the appellant sought to rely had been raised before the Federal Circuit Court, and that leave to rely on them on this appeal should be refused, citing VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48] and BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [40]–[42]. The Minister submitted that there was no adequate explanation for the appellant’s failure to raise these grounds before the primary judge, and that they were of doubtful merit.

33    At the hearing, counsel for the Minister, Mr T Goodwin, accepted that the grounds on which the appellant had relied before the primary judge, at least in a very general way, covered the same kind of subject matter as the grounds on which the appellant sought to rely on the appeal. The result was, as I understand the Minister’s position at the hearing, that while the Minister continued to oppose the grant of leave, he accepted that the leave question turned more on the merits of the new grounds than on the absence of an explanation for the appellant’s failure to raise them earlier.

34    With respect to ground 1, the Minister submitted that there was no basis to allege that the IAA had failed to consider the appellant’s claims regarding his connection to family members who had supported the LTTE, or regarding his return as a failed asylum seeker. The Minister submitted that the Authority was “thorough” in considering the appellant’s claims, including his connections to cousins whom he claimed were involved in the LTTE.

35    At the hearing, Mr Goodwin drew the Court’s attention to the IAA’s statement (at [39]) that “[t]he country information before me indicates that whilst ethnic Tamils continue to face discrimination in Sri Lanka, ethnic Tamils do not face treatment amounting to serious harm in contemporary Sri Lanka”, in support of his submission that the IAA sufficiently considered this aspect of the appellant’s claim in deciding to dismiss it. Mr Goodwin submitted that it was open to the IAA to make the finding at [39] having regard to the country information before it. He further submitted that based on the material before it, the IAA had a sufficient level of regard to the claims and the submissions made in order to deal with it in the way that it did.

36    With respect to ground 2, the Minister submitted that the IAA expressly considered the appellant’s individual circumstances in considering whether he faced harm based on his connections to former members of the LTTE and associated with his individual profile on his return as a failed asylum seeker who had departed Sri Lanka illegally. Further, citing SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 at [27] and DHA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1443 at [46], the Minister submitted that the IAA was entitled to give “whatever weight was reasonable” to the DFAT report.

37    With respect to ground 3, the Minister submitted that the appellant’s complaints about the UNHCR guidelines should be rejected, including because there was no evidence before the IAA to the effect that the appellant had sheltered or transported LTTE personnel or had family links to those persons. At the hearing, however, Mr Goodwin accepted that the appellant would come within the profile of “persons with family links…to persons with the above profiles”, including “former LTTE combatants”. Mr Goodwin also accepted that “being generous of the appellant’s claim that he sheltered and transported his cousin may mean he arguably falls within that risk profile”. He submitted that the IAA proceeded on this basis, and that the IAA “really dealt with that in any event by rejecting the factual basis for any claim, namely that the [IAA] didn’t accept that the appellant visited or helped his cousin escape”. He contended that it was open to the IAA to conclude that the appellant would not be imputed with an LTTE profile given his personal circumstances and the fact both of his cousins had been dead for eight or nine years. There was, so Mr Goodwin submitted, nothing in the IAA’s reasons to indicate that it had misapplied the “real chance” test.

Consideration

Leave to raise new grounds

38    It may be accepted that the grounds on which the appellant sought to rely in this appeal were new in the sense they were not grounds agitated before and considered by the primary judge, even though, at a very general level and in a loose sense, they covered much the same kind of matters that fell for the primary judge’s consideration. For example, the reasons for judgment of the primary judge indicate that the appellant made submissions to the effect that the IAA did not properly consider his relationship with his cousin, a matter that is reflected in particular (a) to grounds 1 and 2, and ground 3. The Minister did not assert that he would suffer any particular prejudice if leave were granted to permit the new grounds to be raised. Further, the appellant did not have the advantage of legal representation in either the Federal Circuit Court or this Court, a factor that may be relevant to the appellant’s failure to raise the appeal grounds before the primary judge. It may also be accepted that the consequences of an adverse decision are significant so far as the appellant is concerned.

39    It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. The Full Court added that, “[w]here, however, there is no adequate explanation for the failure to take the point, and it seems of doubtful merit, leave should generally be refused”. As explained hereafter, although the matters mentioned in the previous paragraph militate in favour of a grant of leave, the most significant consideration in this case is that none of the grounds on which the appellant sought to rely in support of his appeal has sufficient merit to justify the grant of leave. For this reason, I would refuse leave to raise what are essentially new grounds on appeal.

Ground 1

40    As to ground 1, as I am about to explain, there is no apparent basis for the claim that the IAA failed to consider the appellant’s claims that he would suffer serious or significant harm as a person of Tamil ethnicity, if returned to Sri Lanka.

41    In a letter dated 18 November 2015 and addressed to the Department (see at [4] above), the appellant’s representatives set out specific claims concerning the serious or significant risk of harm faced by Tamils in Sri Lanka, which they sought to support by reference to a significant amount of country information. This letter also directed attention to the appellant’s particular circumstances, submitting that he had a profile arising from “his Tamil ethnicity; his family connection to the LTTE; and the fact that he would return as a failed asylum seeker who departed Sri Lanka illegally”, which resulted in “a need for international protection”.

42    The IAA understood and clearly acknowledged the appellant’s claim about his Tamil ethnicity, noting at the outset of its reasons that (at [39]):

The applicant claims to fear persecution on the basis of his Tamil race, his (imputed) political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and his membership of particular social groups (PSG) comprising persons who are family members of a former LTTE cadre and failed asylum seekers who departed Sri Lanka illegally.

43    The IAA evidently addressed this claim when it specifically found, at [39] of its reasons for its decision, that the country information indicated that while people of Tamil descent faced discrimination in Sri Lanka, they did not face treatment amounting to serious harm.

44    The IAA had regard to such information as the Secretary provided to it pursuant to s 473CB of the Migration Act: see [6] of the IAA’s reasons. Besides the delegate’s decision record, this would have included the information in the 18 November 2015 letter referred to above.

45    The delegate’s decision record described the relevant country information with some particularity, stating:

106.    I also accept that, based on a significant amount of country information, many Tamils were systematically targeted and experienced persecution at the hands of Sri Lankan authorities during the course of the civil war between LTTE and Sri Lankan authorities. Furthermore, the latest DFAT Country information states that:

… more Tamils were detained under emergency regulations and the PTA than any other ethnic group. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity.

107.    Country information indicates that this risk was uneven throughout the country, with Tamils living in the Northern and Eastern Provinces more likely to be targeted and to fall within UNHCR’s stated risk profiles at the time. Country information goes on to indicate that, over six years after the defeat of the LTTE and the end of fighting, restrictions on Tamils have significantly lessened, particularly after the election of President Sirisena.

108.    I do however accept that Tamils continue to suffer difficulties and forms of moderate societal discrimination, particularly in militarised areas of the country, though consider that overall the security situation throughout the country has stabilised and the risks posed to Tamils have reduced. This view is reflected in the most recent version of the UNHCR ‘Eligibility Guidelines’ which no longer refers to a presumption of eligibility for protection of Sri Lankans simply on the grounds that they are Tamils originating from the north of the country.

109.    The UK Home Office also supports this view, and in an August 2014 report quote at length from an UK Upper Tribunal decision which found that ‘being of Tamil ethnicity does not in itself warrant international protection’.

110.    For these reasons I find that simply being a Tamil is unlikely to lead to a well-founded fear of persecution in Sri Lanka in and of itself and that other circumstances surrounding the applicant’s claim need to be taken into account. I note that the UNHCR Guidelines caution that a merits-based assessment based on individual circumstances is still necessary and that Tamil ethnicity and places of origin may still be factors increasing the vulnerability of persons within the ‘risk profiles’ whose protection claims warrant particularly close attention and have taken this into account in my assessment. In relation to this particular applicant, the relevant risk profile as outlined in the Guidelines is that of ‘persons with family links or who are dependent on or otherwise closely related to persons with the above profiles’. Included in the ‘above profiles’ are ‘former LTTE combatants or “cadres”’. Again, while this will be discussed in the assessment of the applicant’s political opinion below, it is sufficient to note here that these profiles indicate that persecution solely on the basis of Tamil ethnicity is unlikely, and that other factors need to be taken into account. I do not then accept that there is a real chance of persecution based on the applicant being of Tamil race/ethnicity.

(Footnotes omitted)

These paragraphs from the delegate’s decision record referenced significant country information from multiple sources.

46    Having regard to the delegate’s decision record and the country information to which it referred, it was evidently open to the IAA to find, as the delegate had done, that Tamils in Sri Lanka did not face treatment amounting to serious harm on the basis of ethnicity alone, notwithstanding the claim made and the information relied on by the appellant in the 18 November 2015 letter.

47    Furthermore, it is also evident from its reasons for decision that the IAA considered and made findings about the appellant’s associated claims concerning his cousins, especially P, and his status as a failed asylum seeker who had left Sri Lanka illegally. Regarding this latter matter, as set out at [19] above, the IAA specifically addressed the circumstances that might arise on the appellant’s return as a failed asylum-seeker and as having left Sri Lanka illegally. It considered that he might be detained for several days before a Court could address his situation but found that the conditions of imprisonment would not amount to serious harm within the meaning of the relevant provisions of the Migration Act. It is tolerably plain that the IAA’s consideration of the appellant’s claims concerning his cousins was central to its reasons: its findings are discussed in detail in the discussion regarding ground 3.

48    There was no evidence to support the submission, in so far as the appellant made it, that he would be liable to be detained under a law of general application that was or even might be applied in a discriminatory way: Applicant S cannot assist the appellant in this case.

49    For the reasons stated, ground 1 cannot succeed.

Ground 2

50    There is also no apparent basis for the allegation that the IAA failed to consider the appellant’s “individual claims”, or the “facts applicable to [him] individually”. As should be apparent from [10]–[16] above, the IAA recognised that the appellant’s claims that he would suffer serious or significant harm if he returned to Sri Lanka depended principally on his claimed connection with his cousins’ involvement with the LTTE. The IAA addressed these claims specifically and in some detail. Further, as already noted, it expressly considered the appellant’s individual circumstances in considering whether he would face serious or significant harm on his return as a failed asylum-seeker who departed Sri Lanka illegally, bearing in mind his connection with his cousins and his individual profile: see [14] above. In the latter context, it was open to the IAA to have regard to the DFAT report as mentioned at [19]. As the Full Court said in SZUEP at [27], “subject to principles of legal unreasonableness, the weight to be given to country information is a matter for the [decision-maker]”: see also DHA16 at [46]. The appellant did not contend, that the weight given the country information in the DFAT report was unreasonable, and there is no evident basis for such a contention.

51    For the reasons stated, ground 2 cannot succeed.

Ground 3

52    By reference to ground 3, the appellant challenged the way the IAA applied the UNHCR’s Guidelines and contended that it had misapplied the “real chance” test. The Guidelines were the subject of submissions made by the appellant’s representatives in their letter dated 18 November 2015. It was there submitted that the appellant “has previously been a target of serious harm in Sri Lanka owing to his cousin’s links to the LTTE as a former combatant”. The letter continued:

The Applicant had regularly visited his cousin while working as a training master at an LTTE camp and had also assisted him from escaping from the SLA after they took control of an area where the Applicant’s cousin had been engaged in fighting ... Available information, including the UNHCR Guidelines, would support that the Applicant would remain at a real risk of harm on his return for his family links with a former LTTE combatant, particularly given the role his cousin had held with the LTTE.

53    The IAA accepted that the appellant and his cousin P were close to one another; that this was known; and that P had been a trainer/physical instructor and later a combatant with the LTTE. In this context, the IAA accepted that the UNHCR Guidelines were relevant in so far as the Guidelines indicated that “Tamils with particular profiles risk being persecuted in contemporary Sri Lanka on account of LTTE affiliations, depending on the individual circumstances of the case”. It also accepted that the fact that the appellant was a member of his cousin P’s (and his cousin A’s) family was relevant, presumably because the appellant fell within category 6, being a person with family links to a person (P) in category 2 (“former LTTE combatants or cadres”). The Minister also said, somewhat generously it seemed to me, that the appellant’s claim about assisting P might have brought him within category 4 (“former LTTE supporters who may never have undergone military training but were involved in sheltering or transporting LTTE personnel …”).

54    It may also be that the IAA entertained the possibility that A fell within category 4, although this is unclear and, in any event, the appellant made no such claim. It has not been said that anything turns on the position of A, however.

55    It is evident that in assessing whether the appellant faced a “real chance of serious harm” as it was required to do, the IAA not only had regard to the Guidelines, but also to the particular circumstances of the appellant’s case. The IAA rejected key elements of the appellant’s narrative, including that: (1) he had visited P regularly at the place where P was based with the LTTE “from the end of 2006 to around February 2007”; and (2) he had assisted P to escape from the Sri Lankan Army after a particular battle. The IAA found that the chronology related by the appellant rendered his account implausible when assessed by reference to the independent country information. As the IAA put it (at [26]):

I have not accepted the applicant’s claims in relation to visiting his cousin in the LTTE camp or assisting [him] to escape the army due to my concerns in relation to the applicant’s chronology by reference to clear country information.

56    The result was that category 4 of the Guidelines could have no application, and that the IAA had to consider the significance of the appellant’s “family links” to P in light of its rejection of this part of the appellant’s narrative. In assessing the significance of these links, the IAA referred to three other matters: first, the IAA gave weight to the fact that the appellant’s cousins had been dead for “some eight and nine years respectively”. It also gave weight to the fact that, on the appellant’s own evidence, his cousin P was released by the army after two months’ detention, which the IAA found indicated that “[P] himself was no longer of any particular interest to the Sri Lankan authorities at that time”. Finally, there was the appellant’s own evidence at interview that P would not have identified or mentioned him by name during his interrogation.

57    The IAA had regard to all these matters and certain inconsistencies in the appellant’s evidence in finding that “[t]here is no basis for any motivation on the part of the Sri Lankan authorities, including the CID”, for searching for him. Consistently with this, its finding was that the appellant did not have a profile that would attract any adverse attention from the Sri Lankan authorities, “either by connection with his late cousin [P] or otherwise”. It was confirmed in this view by the fact that the appellant later travelled to Qatar on a Sri Lankan passport without incident. It concluded that the forcible entry of his home, as narrated by the appellant, was unconnected with the death of P, who had by that time been dead for several years and rejected the appellant’s evidence that the postal authorities told his wife that mail to him had been “confiscated”.

58    Having regard to these findings and considerations, the IAA found that the appellant did not face a real chance of persecution “on the basis of an imputed pro LTTE political opinion or by reason of his membership of a particular social group comprising family members of former LTTE combatants or cadres”. The same findings and considerations led the IAA to find that there was also “no risk” of the appellant facing significant harm.

59    As the foregoing shows, there is no apparent basis upon which it could be said that the IAA failed to “properly consider” the UNHCR Guidelines. The IAA assessed whether there was a real chance of serious harm to the appellant on his return to Sri Lanka by reference to the UNHCR Guidelines and the particular circumstances of the appellant, as it found them to be on the evidence before it. In this case, the IAA not only had regard to the Guidelines but also to the evidence about events in the past. There was no error in this approach. There is nothing to support the appellant’s contention that the IAA misapplied the “real chance” test.

60    For the reasons stated, ground 3 cannot succeed.

Disposition

61    As already indicated, I would refuse leave to raise the new grounds that the appellant sought to rely on in support of this appeal and dismiss the appeal with costs.

Associate:

Dated:    9 April 2021