Federal Court of Australia

DLB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 504

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority). The Authority affirmed a decision of a delegate of the first respondent (Minister) refusing the grant of a safe haven enterprise visa (SHEV) to the appellant: see DLB19 v Minister for Immigration [2020] FCCA 2273 (DLB19).

background

2    The appellant is a Tamil Hindu born in Sri Lanka.

3    The appellant departed Sri Lanka on 12 August 2012 and arrived in the Cocos Islands on 2 September 2012 by boat.

4    On 14 March 2017 the appellant lodged his application for a SHEV. In that application the appellant claimed:

(1)    to fear persecution in Sri Lanka because he had been targeted by the Criminal Investigation Department (CID) which suspected that he was associated with the Liberation Tigers of Tamil Eelam (LTTE);

(2)    on two occasions in 2007 he had been travelling on the road when he was stopped at checkpoints and searched. On both occasions he was accused of either intending to supply goods or cash to the LTTE;

(3)    about a month after the second time he was stopped and searched the CID came to his house, forced him into a white van and took him away to be interrogated. He was released when he agreed to pay his abductors;

(4)    approximately one and a half months later the CID went to his home, asked about him and said they would kidnap his son if he did not report to them. Accordingly the appellant returned and the CID took him away and beat him. He was released after he agreed to pay his abductors more money. The appellant experienced similar treatment approximately one and a half months later;

(5)    the appellant then moved his family and in 2009 he went to Dubai and then Iraq. While there, the CID continued to visit his family and ask about him and threatened to kill him upon his return;

(6)    the appellant returned to Sri Lanka in November 2011 when his employment contract ceased. About one week later the CID came looking for him but he was not at home. His wife informed him of the visit so he went into hiding. The CID came again and threatened to kidnap his son if he did not return; and

(7)    at that point he decided to leave Sri Lanka for Australia. He did not bring his son with him because it was a dangerous journey.

5    In a statement dated 10 June 2019 titled “my further statement” (June Statement) the appellant claimed to fear harm: from Buddhist extremists because he is a Hindu; from Islamic extremists because he is a non-Muslim; as a Tamil because of recent escalation of violence in Sri Lanka; because he will be perceived as wealthy and will be abducted and extorted for money; and because he will be considered as an unauthorised and unlawful deportee and will be interrogated and detained on his return.

6    In the June Statement the appellant also said (as written):

Recent Country information confirms that Mr Gotabaya Rajapaksa who involved in killing Tamils and has hatred mentality towards Tamils, has declared that he would contest in the next Presidential election.

[https://www.aljazeera.com/news/2019/05/gotabaya-rajapaksa-confirms-presidential-run-anxious-sri-lanka-190517033533121.html]. The election commission of Sri Lanka has already declared that Presidential election would be held in end of this year.

[https://www.thehindubusinessline.com/news/world/sri-lankan-presidential-polls-to- be-held-between-nov-15-and-dec-7/article27405054.ece]. Recent local council elections show that the Mahinda Rajapakse (brother of Gotabaya Rajapakse) won the majority seats.

[http://www.xinhuanet.com/english/2018-02/12/c_136970000.htm] The country information confirms that the re-emergence of Mahinda Rajapaksa and there is a strong possibility that his brother, dreaded Gotabaya would become the next President in the next Presidential election in 2019 December. As a result of that, there would not be any constructive changes in relation to country situation now or in a near future.

7    In a submission also dated 10 June 2019 the appellant claimed that he would be perceived as a LTTE supporter, considered as a person holding a political opinion against Sri Lanka and supporting Tamil nationalists, that he was a failed asylum seeker who was not authorised to depart Sri Lanka and was a Sri Lankan Tamil living abroad involved in Tamil nationalist activities. The appellant referred to a number of articles in the submission including:

Gotabaya Rajapaksa confirms presidential run in anxious Sri Lanka, 18 March 2019,

https://www.aljazeera.com/news/2019/05/gotabava-rajapaksa-confirms-presidential-run-anxious-sri-lanka-190517033533121.html

Former defence secretary Gotabaya Rajapaksa, accused by rights groups of war crimes during the final months of Sri Lanka's long-running civil war a decade ago, has confirmed he plans to run for the presidency in the wake of the Easter Sunday attacks that have shattered the country's uneasy peace.

the authority’s decision

8    The Authority set out a summary of the appellant’s claims before turning to consider them. Relevantly, it made the following findings:

(1)    it accepted that the appellant was stopped, questioned and searched on two occasions when travelling to and from Jaffna but was not satisfied that the authorities had any interest in him beyond him being a Tamil travelling to and from Jaffna;

(2)    it was not satisfied that the appellant was suspected of any LTTE involvement and thus that he faces a real chance of harm from any real or imputed association with the LTTE;

(3)    it accepted that the appellant was a businessman, that persons including police officers were aware of that fact and that he was subjected to extortion demands in about 2007 at the hands of people who claimed to be from the CID. However, the Authority was not satisfied that those persons were in fact CID or police officers. It said that even if they were it was satisfied that the extortion attempts were related to his profile as a wealthy Tamil rather than any LTTE profile. At [34] of its decision record the Authority said:

The information before me indicates significant improvements in the situation for Tamils in Sri Lanka, both in terms of the security situation and general discrimination. While there are some reports of ongoing problems, these appear to be in the former LTTE-controlled areas of the north and the east. The applicant has never lived in these areas or claimed that he will need to do so should he return to Sri Lanka.

(4)    it was not satisfied that the appellant faces more than a remote chance of harm, including extortion, on the basis of being imputed as wealthy;

(5)    in relation to the appellant’s claims concerning Gotabaya Rajapaksa (GR) and Mahinda ‍Rajapaksa (MR) at [35]-[36] of its decision record the Authority said:

35.    I have considered the applicant's claims in relation to Gotabaya Rajapaksa and his brother, Mahinda. Information before me indicates that on 26 October 2018, current President Sirisena fired the Prime Minister (Ranil Wikremesinghe) and appointed Mahinda Rajapaksa to that position. This raised concerns amongst Tamils, particularly in the north and east, that history could repeat itself with further violence and discrimination. The appointment was not final, as the Sri Lankan High Court had to rule on the constitutionality of the decision. In any event, Mahinda Rajapaksa is no longer the Prime Minister and Ranil Wikremesinghe has resumed that role. Other information before me indicates that in early 2019, Gotabaya (who has been accused of war crimes during the final months of the conflict) confirmed that he would stand as a candidate in the presidential elections to be held later this year.

36.    While I accept that the applicant (and Tamils in general) may fear the re-emergence of Mahinda and Gotabaya, the information before me does not indicate that either have expressed any views on returning to the discriminatory practices or oppression that marked the conflict years. There is no information before me that the situation for Tamils deteriorated during the short period that Mahinda Rajapaksa was Prime Minister [(Authority’s first and second findings)]. In relation to the presidential elections, these elections have not yet occurred and overall I consider that the applicant's fears in relation to these events are speculative and not well-founded [(Authority’s third finding)].

(6)    it was not satisfied that the appellant would suffer harm because of his age, the data breach by the Minster’s department in 2014 which resulted in the inadvertent release of some of the appellant’s personal information, his attendance at commemorations in Australia, or by reason of his being a returned asylum seeker who departed Sri Lanka illegally;

(7)    the Authority was not satisfied that the appellant has any adverse profile other than being a Tamil and an illegal deportee and was not satisfied that he has a well-founded fear of persecution when his claims were considered cumulatively or for any reason or combination of reasons should he return to Sri Lanka; and

(8)    the Authority also considered whether the appellant met the requirements for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) but concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that he would face significant harm.

federal circuit court decision

9    The appellant sought review of the Authority’s decision in the Federal Circuit Court. In his amended application he raised three grounds of review. Only ground three is relevant to the grounds pressed on appeal. That ground is in the following terms:

3.    The [Authority] made jurisdictional error in misapplying the real chance test, and, alternatively the [Authority] unreasonably failed to deal the applicant’s claim that [GR’s] re-emergence as present posed a threat to the applicant as it could bring back the situation in Sri Lanka which prevailed when he was extorted.

Particulars

(a)    At CB137[36] the IAA just dismissed the fear about Gotabaya without any serious consideration;

(b)    It failed to consider the real chance of persecution from that real chance of Gotabaya emerging as victorious from the election;

(c)    It failed to speculate about the real chance of persecution where that speculation is legally necessary;

(d)    It failed to look at the history of their racist conduct and failed to consider if they have changed their views;

(e)    It failed to look at the reasonably foreseeable future and looked at short term future to decide on the well-founded fear of persecution; and

(f)    It unreasonably considered the very short period in which Mahinda Rajapakse (sic) became Prime Minister, because it was too short to be indicative of anything.

10    The primary judge summarised the appellant’s submissions. In particular that he had contended that the Authority: failed to consider the possibility of GR becoming president and failed to speculate about what might happen to the appellant if that occurred and he was to return to Sri Lanka; failed to consider his claims about what might happen if GR became president in that it did not consider the country information and particular aspects of material provided by the appellant to the Authority in the June Statement; and the Authority speculated about the matter in an impermissible way and failed to consider whether GR would be elected president and what might happen if he was so elected.

11    The primary judge observed that, while it was correct to say that there was no specific reference in the Authority’s reasons to a consideration of GR becoming president, there were specific references to indicate that the Authority did not have before it any information that if GR re-‍emerged he would then return to discriminatory practices and oppression. The primary judge found that the Authority did thus assess the possibility of what might happen if GR was to be elected president as it found that there was no evidence that what the appellant feared would eventuate: see DLB19 at [51].

12    As to the balance of the particulars to ground 3 the primary judge said that it could be inferred from the Authority’s reasons read as a whole that it was aware of and had considered the oppression and discrimination against the Tamils during the conflict years and not just during the brief period when MR was prime minister. The primary judge observed that the appellant did not specifically point to particular aspects of this material which included information in relation to MR and GR’s “racist conduct” such that the Authority could be said to have “failed to consider if they have changed their views”. The primary judge held that the Authority’s conclusion, that the appellant’s fears were speculative and were not well-founded on the material, was consistent with the decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at [48], that the Authority did not fail to consider the “real chance” test and that it did not fall into jurisdictional error: see DLB19 at [53]-[55].

the appeal

13    The appellant raises one ground of appeal as follows (as written):

1.    The learned primary judge erred by failing to find (i) that the Authority committed jurisdictional error in misapplying the real chance test, and/or (ii) the Authority unreasonably failed to deal with the applicant’s claim that Mr Gotabaya Rajapaksa’s emergence as president posed a threat to the applicant as it could bring back the situation in Sri Lanka which prevailed when he was extorted.

Particulars

(a)    At [51] of her decision, her Honour accepted as correct that there is no specific reference in the reasons of the Authority to a consideration of Gotabaya Rajapaksa becoming president.

(b)    At [51] in the same first sentence her Honour held that the Authority did not have before it any information that if Gotabaya Rajapaksa re-emerged he would then return to discriminatory practices and oppression. However the only information the Authority had was that which happened in the past in that he was accused of war crimes and other matters in similar vein, and there was no information that he has changed and therefore well-founded fear should have been considered on that basis.

(c)    At [51] in the second sentence her Honour erred by finding that the Authority did therefore assess the possibility of what might happen if Gotabaya Rajapaksa was to be elected president, as it found that there was no evidence that what the applicant was fearful of would eventuate. This is different to what the Authority stated at [35] which was that in relation to the presidential election, these elections have not occurred and overall that the Authority considered that the applicant’s fears in relation to these events are speculative and not well-founded. It appears in fact that the first and the second sentences of her Honour in [51] are inconsistent.

(d)    In the context of what was accepted by the Authority at [49(c) &(d)], what was stated at neither [49(e)] nor [51], gave justification for failing to consider what would happen if Gotabaya became president on the basis that Gotabaya has not expressed any views on returning to discriminatory practices or oppression that marked the conflict years.

(e)    Her Honour’s reasons at [53] is unsupportable in that what the Authority accepted at [49(c) & (d)] necessarily supports the position that the Authority “failed to consider if they have changed their views”.

(f)    Her Honour failed to find that a number of pieces of critical country information that were provided to the Authority about Gotabaya’s and his supporters emergence which were specifically pointed out to her Honour at the oral hearing and in written submissions, were not taken into account.

(g)    Her Honour erred by finding at [55] that the finding by the Authority was in line with the High Court authority since the strength of the information about the reasonable possibility of Gotabaya becoming president was such that the Authority required speculation to a level much higher than just a conjecture or surmise.

(h)    Her Honour failed to deal with Ground 3(e) which stated that the Authority had failed to look at the reasonably foreseeable future and only looked at short term future to decide on the well-founded fear of persecution. Her Honour misunderstood that at [52] and dealt with a different issue.

(Underlining omitted.)

14    While the amended notice of appeal only raises one ground, that ground has two parts. I will address each in turn.

Ground 1(i)

Appellant’s submissions

15    This part of ground 1 principally focuses on [51] of DLB19 where her Honour said:

While it might be correct that there is no specific reference in the reasons of the Authority to a consideration of [GR] becoming president (that is, it is not a matter per se which the Authority assessed as likely to happen or not or assessed at all) [(first finding)] there are specific references in the reasons which indicate that the Authority did not have before it any information that if [GR] re-emerged he would then return to discriminatory practices and oppression [(second finding)]. The Authority did therefore assess the possibility of what might happen if [GR] was to be elected president, as it found that there was no evidence that what the applicant was fearful of would eventuate [(third finding)].

16    The appellant submits that the first finding is somewhat favourable to him but focuses on and is critical of the second and third findings.

17    As to the second finding, the appellant submits that the assessment of whether a person will face a chance of serious harm if returned to a country is a “predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”, relying on MZYTS v Minister of Immigration and Citizenship (2013) 230 FCR 431 at [33].

18    The appellant submits that although there was no information before the Authority indicating a reinforcement in the attitude of GR and MR, in the sense of expressing any views on returning to the discriminatory practices that marked the conflict years, there was significant information about their past conduct and current developments causing concern. The appellant submits therefore that the primary judge was in error in making the second finding. The appellant contends that, in ignoring evidence about past conduct and present developments, her Honour erred in applying the test for well-founded fear.

19    The appellant submits that the primary judge’s second finding is also not supported by what the Authority had in fact found at [36] of its decision record. The matters referred to by the Authority were first, that GR and MR had not expressed any views about their future conduct and secondly, what took place during MR’s brief tenure as president. The appellant contends that the Authority’s reasons show that it erred because it failed to consider their past conduct and recent developments.

20    The appellant contends that the Authority’s third finding did not follow from the Authority’s first and second findings because, in making its finding about the upcoming elections, it did not have regard to the most reliable evidence:

(1)    in the June Statement the appellant provided detailed country information about the possible emergence of GR as a future president. In particular the appellant relies on an article titled “Rajapaksa confirms presidential run in anxious Sri Lanka” dated 18 May 2019;

(2)    in the June Statement the appellant referred to the Sri Lankan government actively condoning growing Buddhist extremism by releasing an extremist monk from jail;

(3)    in his submission the appellant provided an article dated 18 March 2019, which referred to GR being accused by rights groups of war crimes during the final months of Sri Lanka’s civil war and his plans to run for presidency, and an article which reported on the recent appointment by Sri Lanka’s current president of a general accused by the United Nations of war crimes to Sri Lanka’s second highest army rank which, the appellant submits, implies that people who were war criminals against Tamils (who are GR supporters), were “currently gaining (sic) upper hand”;

(4)    the Authority accepted that GR had been accused of war crimes during the final months of the civil conflict; and

(5)    at least two pieces of country information referred to by the Authority (at footnotes 14 ‍and 16 of its decision record) explicitly address past racist conduct of GR and MR. The Authority also referred to the Tamils’ fear that “history would repeat itself with further violence and discrimination” and “the discriminatory practices of oppression that marked the conflict years”.

21    The appellant submits that, although the Authority had significant evidence about the past conduct of MR and GR, it failed to appreciate the absence of information before it showing that GR has changed his views. He contends that the latest information only shows evidence supporting their extremist attitude and, accordingly, the Authority was required to consider his well-founded fear based on what happened in the past and recent country information including that provided by the appellant.

22    The appellant submits that “it should have been obvious to the Authority that it would be suicidal for a presidential candidate to openly state that they will return to the discriminatory practices or oppression [which] marked the conflict years because they cannot openly write off the large minority vote in its entirety”. He says that for the Authority to consider the absence of an express statement as the most significant matter shows an element of illogicality, irrationality or unreasonableness. The appellant also submits that giving significance to the short period of 51 days in which MR was prime minister was unreasonable. He says that this period was unusual as it was marked by the sacking of the previous prime minister from the rival party and MR’s appointment, which was subsequently invalidated by the Supreme Court.

23    The appellant contends that the primary judge erred when she said at [53] of DLB19 that the appellant did not in his submissions point to any fact or information in his material or otherwise which contained information in respect of MR and GR’s history of racist conduct. The appellant contends that there was no support for that finding and that there are many matters that establish their racist history. The appellant says that, in any event, whether GR and MR had a racist history was not a point of contention between the parties. The appellant had no reason to believe that this would be an issue and there was no need to emphasise any fact or information about past racist conduct before the primary judge.

24    As to the third finding, the appellant submits that the primary judge erred by failing to consider that the Authority’s third finding was prefaced with the statement “in relation to the presidential elections, the elections had not yet occurred”. The appellant contends that an analysis of the Authority’s third finding may show that it conflated two issues into one unintelligible conclusion when it found that the presidential election had not yet occurred and overall it considered that the appellant’s fears in relation to these events “speculative and not well-‍founded”. The appellant submits that the two issues should be considered separately and identifies them as first, whether there was a real chance that GR would become the president; and secondly, if GR became president, was there a possibility of increased persecution.

25    The appellant submits that the Authority’s statement that the elections had not occurred shows its reluctance to contemplate the real chance of GR becoming president. He says, that although the election had not occurred, there was no question that it would be held and no question that GR had a real chance of winning the election given the relatively low threshold to demonstrate a real chance and the significant evidence to support that possibility.

26    The appellant submits that the primary judge erred by finding at [55] of DLB19 that the Authority did not speculate in the impermissible sense of conjecture or by finding that the Authority’s approach was in line with High Court authority. The appellant says that the Authority’s statement that “these events are speculative and not well-founded”, where those events have a real chance of occurring, was mere conjecture without proper consideration because the strength of the information about the reasonable possibility of GR becoming president required the Authority to speculate to a level much higher than just conjecture. The appellant submits that the Authority’s use of the phrase “events are speculative” in the sense of “not having a real chance” shows that it misunderstood the applicable test as requiring a greater degree of certainty than what a real chance requires.

27    Finally, the appellant submits that the primary judge failed to deal with ground 3(e) (see [9] above) by which the appellant contended that the Authority looked only at the short term future, rather than the reasonably foreseeable future, to decide whether the appellant held a well-‍founded fear of persecution. He submits that her Honour misunderstood ground 3(e) and at [52] of DLB19 dealt with a different issue. The appellant submits that failure by a decision maker to have regard to a chance of harm in the reasonably foreseeable future, for example by only considering the present or immediate future, may amount to a legal error. If a decision maker concludes that there is no real chance of harm presently it may be necessary to consider a change in circumstances that may readily be foreseen and could result in a real chance of harm.

Consideration

28    By this part of ground 1 the appellant contends that the primary judge erred by failing to find that the Authority misapplied the real chance test because, in effect, there was information before it that GR had been accused of war crimes in the past and there was no information that he had changed.

29    There was no dispute between the parties about the principles to be applied in considering whether an applicant for protection has a well-founded fear of persecution.

30    A fear of being persecuted is well-founded is there is a “real chance of being persecuted”: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 389, 397-‍8, 406-407. In Chan at 389 Mason CJ expressed his preference for the expression “a real chance” because it “clearly conveys the notion of a substantial, distinct from a remote chance, of persecution occurring”.

31    In Guo (at 572) the High Court said that speculation in terms of making a finding as to whether or not an event might or might not occur in the future is permissible in assessing whether there is a real chance of persecution. However their Honours continued:

Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 ‍per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

32    In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [83] McHugh J said:

In most cases, it is necessary for a tribunal considering a claim for refugee status to make findings about past events that are alleged to constitute persecution. That is because what has occurred in the past is ordinarily a reliable indicator of what is likely to occur in the future. Past acts of persecution are usually strong evidence that the applicant will again be persecuted if returned to the country of his or her nationality. But the relevance of past acts of persecution depends upon the degree of likelihood that they or similar acts will occur in the future.

(Footnote omitted.)

33    The appellant first made his claims about the possible return of GR as president in the June ‍Statement (see [5]-[6] above). In making that claim the appellant provided the Tribunal with links to three articles. The first of those articles titled “Gotabaya Rajapaksa confirms presidential run in anxious Sri Lanka” is referred to by the Authority in its decision record at footnote 16.

34    A review of the Authority’s decision record also reveals that the Authority undertook its own research given the reference (at footnote 14) to a second article dated 18 May 2019 titled “What‍ happens if Rajapaksa heads Sri Lanka’s government?”. That article also concerns the candidacy of GR at the upcoming presidential election.

35    It is these two articles on which the appellant focusses in making his submission that there was information before the Authority that GR had been accused of war crimes which, in turn, underpins the assertion that the Authority misapplied the real chance test. It is thus necessary to consider the content of these articles in further detail.

36    The first article, which was provided to the Authority by the appellant (see [33] above), includes by way of example:

“Definitely I’m contesting,” Rajapaksa said with a chuckle during an interview in the book-lined study of his home in the capital, Colombo, photos of his military career hanging from the walls.

…

‘Strongman’s appeal’

Investigative journalist Lasantha Ruhunage said Rajapaksa would have a “strongman” appeal given his role in defeating the rebel Liberation Tigers of Tamil Eelam (LTTE) in a conflict that came to a bloody end on a narrow strip of beach on the island’s northeast in 2009.

…

Rajapaksa claims the government’s decision shortly after it came to power in 2015 to detain and investigate senior military officers amid allegations of wartime rights violations contributed to the failure.

But during the decade that he was defence secretary, the military was accused of a wide range of abuses – from torture to enforced disappearances and extrajudicial killings – creating a climate of fear among journalists, activists and government critics.

…

Ten years after the fighting finally came to an end in 2009, there has been little attempt to address the lingering resentments that helped fuel the conflict – even though Sirisena came to power promising reconciliation and accountability. A 2015 pledge to investigate wartime atrocities is still to be met.

…

Once the election is called, and Rajapaksa formally launches this campaign, many believe that the past will probably matter little to the majority of voters, while Rajapaksa will portray himself as the man who can restore stability to a troubled island.

…

Over the last (few) years, there have been communities that have been critical of the government, of him, human rights people have gone public… My concern is that if he comes back to power and his focus is on a ‘threat to the nation’ in the past that has been anyone critical of the government.

“I think he would be quite heavy-handed.”

37    The second article, sourced by the Authority (see [34] above), includes by way of example:

Rajapaksa’s administration was accused of serious rights violations during the final stages of conflict between the government of Sri Lanka and Liberation Tigers of Tamil Eelam. It is a matter of record that the Sri Lankan military indiscriminately attached civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared.

…

Rajapaksa’s return would certainly mean the reversal of the few gains that have been made on transitional justice and accountability. It would also signal the end of a joint process towards transitional justice at the Human Rights Council, which began with a landmark UN resolution in 2015.

…

In the face of competing conflicts, international steam for the UN process was already fading fast but Rajapaksa’s return will certainly sound the death knell for these initiatives. Rajapaksa presided over a government which brutally ended decades of conflict in the country. Coupled with the lack of progress on national efforts for reconciliation with an unchanged repressive framework, this essentially marks the end of any real justice or accountability for the crimes that took place.

…

For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa’s return could see Tamil activists and perceived dissidents targeted once again.

…

However events unfold in the coming weeks, one this is for sure: a Rajapaksa’s premiership risks plunging the country back into economic turmoil and potential violence. Sri Lanka is one of South Asia’s oldest democracies, and never before has it so blatantly disrespected its own constitutional norms. As Parliament is set to reconvene is a few days, there is an urgent need to ensure that the democratic processes prevail. Political gains should never be pursued at the cost of democracy. The risks are far too high.

38    As the Minister submits, an assessment of whether past events may have a bearing on future events requires identification of the past events that are said to amount to persecution and the future events in question. In order to undertake that assessment in this case it is necessary to have regard to the Authority’s findings. Relevantly the Authority found that:

(1)    the appellant had no imputed LTTE profile or association and was not suspected of any involvement with the LTTE;

(2)    the appellant was subjected to extortion demands by persons who claimed to be from the CID but the extortion was related to his profile as a perceived wealthy Tamil rather than because of any LTTE profile; and

(3)    while it is plausible that the men who extorted the appellant were involved with or associated with the Sri Lankan authorities in some way, they were acting in an unofficial capacity.

39    Having regard to those findings it is difficult to see how the information on which the appellant relies could have any bearing on the assessment of whether there is a real or substantial basis for the appellant to fear future persecution. In particular, the articles relied on by the appellant, which were referred to by the Authority, do not suggest that GR’s crimes were committed against Tamils in general but refer to activists, dissidents and journalists being the subject of those alleged crimes. The appellant does not claim to be a member of any of those groups.

40    At [36] of its decision record the Authority found that the appellant and Tamils in general may fear the re-emergence of MR and GR, a finding which the articles relied on by the appellant support. However, given the general nature of those articles, they do not contain any information that might suggest or indicate that the appellant has a well-founded fear of persecution in Sri Lanka.

41    The appellant challenges the Authority’s statement that MR and GR had not expressed any views on returning to discriminatory or oppressive practices, saying that it unreasonably gave consideration to that matter. However, in making that statement the Authority was merely summarising the effect of the evidence before it. While it may be fanciful to expect a politician to say otherwise, no error can be visited on the Authority for doing so.

42    The appellant asserts that the primary judge failed to deal with ground 3(e) of his application, that she misunderstood the ground and dealt with a different issue despite what was contained in his written submissions. By particular (e) to ground 3 the appellant contended that the Authority “failed to look at the reasonably foreseeable future and looked at (sic) short term future to decide on the well-founded fear of persecution”. The appellant’s written submissions relied on before the primary judge were also before me. The relevant part of those submissions concerned the Authority’s reference to the period during which MR became prime minister. The appellant submitted that the Authority unreasonably considered that period because it was too short to be indicative of anything.

43    In my view, the primary judge did not misapprehend the appellant’s submissions. Her Honour said at [52] of DLB19, in relation to the “other particulars” of ground 3 which included (e), that it could be inferred from the Authority’s reasons read as a whole that it was aware of and it did consider the oppression of and discrimination against Tamils during the conflict years and not just during the period when MR was prime minister. That is, the primary judge dismissed the balance of the particulars to ground 3, including particular (e), because she was of the view that when its reasons were read as a whole it was clear that the Authority had not merely addressed itself to the immediate future.

44    Ground 1(i) is not made out. There is no error in the primary judge’s conclusion that the Authority did not fail to consider whether there was a real chance that the appellant would suffer harm if he returned to Sri Lanka.

Ground 1(ii)

The appellant’s submissions

45    The appellant submits that this part of ground 1 alleges failure by the Authority to deal (properly) with the claim that the emergence of GR posed a threat to him. The appellant does not suggest that the Authority did not deal with the claim per se but contends first, that the Authority failed to deal with critical evidence and submissions in dealing with the claim; and secondly, it dealt with a different claim “in the sense of emphasis of the possibility of GR becoming president”. The appellant says that ultimately his allegation is one of failure to exercise jurisdiction on the basis that the claim was not dealt with properly.

46    The appellant submits that there is a difference in the actual claim that he made and the claim as articulated by the Authority in its decision record, and that his claim that there is a strong possibility of GR becoming president was not considered. He relies on recent country information which he says was before the Authority and which he says needed to be, but was not, assessed in relation to the threat of GR becoming president.

Consideration

47    This ground, as framed in the appellant’s notice of appeal, is that the primary judge erred by failing to find that the Authority unreasonably failed to deal with the applicant’s claim that GR’s emergence as president posed a threat to him as it could bring back the situation in Sri Lanka which prevailed when he was extorted. In his written submissions the appellant frames the ground in a somewhat different way in that he contends that the Authority failed to exercise jurisdiction because the claim “was not properly dealt with” in the way described above. In oral submissions the appellant developed this ground on the basis it was put in his written submissions.

48    In considering this ground it is convenient first to have regard to the claim that was in fact made by the appellant in relation to the risk of GR becoming president in the June Statement, which is set out at [6] above, and the way in which the Authority summarised that claim at [6] of its decision record. It did so as follows:

Recently, Gotabaya Rajapaksa declared that he would contest the next presidential election and his brother, former president Mahinda Rajapaksa is also re-emerging politically. If Gotabaya Rajapaksa becomes president there will not be any constructive changes in relation to the country situation now or in the foreseeable future.

That summary accurately set out the nature of the appellant’s claim about the possible return of GR as made in the June Statement.

49    Next, it is necessary to consider whether the claim as contended for by the appellant in ground 1(ii) was in fact made by the appellant. That is, that GR’s emergence as president posed a threat to him as it could bring back the situation in Sri Lanka which prevailed when he was extorted. The Authority is not obliged to consider a claim that is not made or that does not clearly arise from the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [60].

50    No such claim as asserted by the appellant was made. The claim made, which was in fact considered by the Authority, was that if GR was to become the next president of Sri Lanka “there would not be any constructive changes in relation to the country situation now or in the near future”. The appellant’s claim, as made, did not have any articulated connection to his claims of extortion nor did any of the material put before the Authority by the appellant suggest any connection between GR and the extortion of wealthy Tamils.

51    I turn then to consider the ground as put by the appellant in his written and oral submissions that the Authority failed to consider his claim properly. In particular the appellant says that the Authority did not consider the claim that there is a “strong possibility” of GR becoming president. That was said to be evident based on the material put before the Authority by the appellant. The Authority considered the possibility of re-emergence of GR as president at [35]-‍[36] of its decision record (see [8(5)] above) but, in circumstances where the election had not yet occurred, dismissed the appellant’s fears in relation to that as speculative. Accordingly, the Authority did not need to consider whether there was a “strong possibility” that GR would return as president, the likelihood or GR’s re-election simply did not arise.

52    This ground is not made out.

conclusion

53    The appellant has failed to make out either of his grounds of appeal. It follows that the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs of the appeal as agreed or taxed.

54    I will make orders accordingly.

Associate:

Dated:    14 May 2021