Federal Court of Australia

CTE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 759

ORDERS

THE COURT ORDERS THAT:

1.    In so far as necessary, leave to raise grounds 1, 3 and 5 of the notice of appeal be granted.

2.    Leave to raise grounds 2 and 4 of the notice of appeal be refused.

3.    The appeal be dismissed.

4.    The appellant pay the Minister’s costs of the appeal, as agreed or assessed.

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 28 June 2019, dismissing an amended application for judicial review of a decision of the Immigration Assessment Authority made on 29 August 2016. On that date, the Authority had affirmed the decision of a delegate of the respondent Minister not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV). The Federal Circuit Court’s decision has the citation CTE16 v Minister for Immigration & Anor [2019] FCCA 1808 (PJR).

2    For the reasons that follow, I would dismiss the appeal.

Background

3    The appellant is a citizen of Sri Lanka, a Tamil and Hindu. He arrived in Australia in the second half of 2012 as an unauthorised maritime arrival (as defined under s 5AA of the Migration Act 1958 (Cth)). The appellant was interviewed as an irregular maritime arrival on 16 January 2013.

4    On 19 January 2016 the appellant applied for a SHEV, with the assistance of his migration agent. His application was accompanied by his statutory declaration dated 14 January 2016. On 13 April 2016, the appellant attended an interview with a Departmental officer, and the appellant’s migration agent subsequently made further submissions on his behalf dated 27 April 2016.

5    On the basis of the record of the appellant’s entry interview, his statutory declaration and his migration agent’s further submissions, the appellant’s claims can be summarised as follows:

    In 2009 the appellant was injured by shrapnel in a bomb explosion which killed his aunt, her husband and their son. The appellant was admitted to hospital for his injuries.

    While the appellant was in hospital, members of the Sri Lankan Army (SLA) attended the hospital and photographed all of those who were injured, including the appellant. They accused him of working for and supporting the Liberation Tigers of Tamil Eelam (LTTE).

    Also in about 2009 the appellant was forcibly removed to an SLA-controlled area and was separated from his family. The appellant was captured by the SLA and held captive in an army camp for a period of many months.

    While detained in the army camp the appellant was beaten and badly tortured. The appellant was forced under threat to his life to sign a paper which he believed to be a confession that he assisted the LTTE, although he was “unsure what the paper said exactly”.

    While detained in the army camp the appellant’s grandmother approached the Red Cross for help in securing the appellant’s release. The SLA told the Red Cross that the appellant had admitted to working for the LTTE.

    Following his release from the army camp, the appellant was required to report daily at the police station and at the Criminal Investigation Department (CID) office.

    In 2010 the appellant fled to India for safety for a period of nine months, before returning to Sri Lanka for his mother’s funeral. The appellant continued to attract adverse attention from the CID following his return from India.

    In about August 2012 the appellant was followed in the street by two men he believed to be from the CID. The police refused to assist the appellant on the basis of his Tamil ethnicity and he decided at this point to flee for Australia.

    In about March 2014, four people from the Sri Lankan government attended the appellant’s grandmother’s house and demanded to know his whereabouts. The same people returned to his grandmother’s house a few months later.

    The appellant’s brother continues to be harassed by the CID due to the appellant’s imputed association with the LTTE.

    The appellant believes that his decision to seek asylum in a Western country increases the risk that he would be imputed to hold an anti-government political opinion.

    The appellant fears that if returned to Sri Lanka, he will be either killed or subjected to torture and serious harm on the basis of his Tamil ethnicity, his imputed and real political opinion and his membership of a particular social group, namely as a returnee from the West and a failed asylum seeker.

6    On 14 July 2016, a delegate of the Minister refused the appellant’s application for a SHEV. The delegate’s decision record indicates that at the 13 April 2016 interview the appellant elaborated his claims, including by stating that:

    Following his forcible removal to an SLA-controlled area, CID officers showed the appellant a video of him working in a hospital during the final stages of the civil war helping injured soldiers and combatants, and accused him of helping injured LTTE combatants. He claims that after this incident he was blindfolded and taken to a nearby SLA camp and held in detention for several months, during which he was tortured and forced to sign documents written in Sinhalese. He could not read these documents but he believed they said that he was associated with the LTTE.

    When the appellant returned from India in 2011, he was stopped and questioned at the airport by the CID. The appellant told the Sri Lankan authorities that he had travelled to India for religious purposes and did not mention that he had fled due to security and personal safety concerns. He was released on the same day, but was escorted by a CID officer on an eight-hour bus ride to the location of his mother’s funeral.

7    The delegate’s decision record indicates that the delegate accepted that the appellant was abducted and subsequently detained by the CID in the manner described, including his claim to have been forced to sign a document admitting association with the LTTE. The delegate also accepted that the appellant was questioned at the airport on his return from India, but found that this was not related to his previous interactions with the SLA and the CID and that the appellant “was of no particular adverse interest” to the authorities at that time, citing country information indicating that those perceived by the authorities to have a significant profile in relation to LTTE association “would appear on a ‘stop’ list at the airport”. The delegate did not accept that a CID officer accompanied him to the location of his mother’s funeral.

8    The delegate observed that the appellant was never charged with any terrorism related offence in relation to his imputed LTTE association, citing a 2015 DFAT Country Information Report which was said to indicate that “those with an actual or perceived association with the LTTE would have likely been arrested, detained and prosecuted through Sri Lanka’s criminal courts, often following a period of detention in a rehabilitation centre”. The delegate found that the appellant has “no political profile and has no connection to the LTTE”.

9    After considering the appellant’s various claims, the delegate was not satisfied that the appellant satisfied the criterion in s 36(2)(a) or (aa) of the Migration Act.

10    The appellant was notified by a letter dated 18 July 2016 that the delegate’s decision had been referred to the Authority for a review. The appellant appointed a migration agent to assist him with the review process. By email of 28 July 2016, the migration agent requested an extension of time in order that the appellant could lodge a request for access to Departmental documents relating to his application and interviews under the Freedom of Information Act 1982 (Cth) (FOIA). The request was later withdrawn following the receipt of relevant documents outside the FOIA process. In response to the appellant’s request for an extension of time, the Authority notified the appellant and his agent, by letter dated 5 August 2016, that the Authority would not make a decision in his review before 19 August 2016 and that any submission received before then “may be considered”. The appellant, by his migration agent, provided further materials to the Authority by email on 8 August 2016, comprising submissions dated 8 August 2016 and a statutory declaration made by the appellant dated 8 August 2016. The submissions included several hyperlinks to supporting country information.

11    In his 8 August 2016 statutory declaration, the appellant stated that:

In 2009, particularly during the final stages of the war, I was helping transport injured persons to hospital as and when needed. I do not know the ethnicity or political background of those that I transported to hospitals and medical [centres]. I took injured persons to the hospital … and helped doctors there. I also ferried injured persons to a makeshift clinic which was run out of a school nearby. This clinic was run by the LTTE.

12    The appellant stated that he believed that the injuries he had sustained in the bomb blast were the reason he came to the attention of the authorities, as a consequence of which he was taken away and held in detention for sixteen months “in rehabilitation [centres] where persons suspected of LTTE affiliation were held”. The appellant disputed the delegate’s finding that he was of no adverse interest to the Sri Lankan authorities because he was able to leave for India in 2010. He stated that at the time of his travel to India he was traveling lawfully with a group of people on a religious pilgrimage and “did not have any arrest warrants or court charges” against him. The appellant stated that he continued to receive adverse attention from CID officers following his mother’s funeral, including the resumption of requirements to report weekly to the police station.

13    The submissions of 8 August 2016 specifically cited the 2012 “United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka” (UNHCR Guidelines) in support of the appellant’s claim that he had a profile of interest to the Sri Lankan authorities, noting in particular the risk category of “former LTTE supporters who did not undergo military training but were involved in sheltering or transporting LTTE personnel”. The submission stated that the appellant was not detained in an Internally Displaced Persons camp, but in a rehabilitation centre for persons suspected of LTTE association. Noting the delegate’s finding that the appellant was never charged with any terrorism related offence, the submission cited a February 2010 Human Rights Watch report stating that “only a small number of persons held in detention in 2010 were formally charged of offences by the Sri Lankan government”.

The authority’s decision

14    By letter dated 29 August 2016 the appellant was informed that the Authority had affirmed the decision under review. The reasons for its decision are described below.

Information before the Authority

15    Under the above heading, the Authority stated that it had had regard to the material referred to it by the Secretary under s 473CB of the Migration Act, as well as the referred applicant’s 8 August 2016 statutory declaration and further written submissions, on the basis that this was not new information.

16    After noting the reference to the February 2010 Human Rights Watch report in the referred applicant’s 8 August 2016 submissions, the Authority said in its reasons (AR), at [7]:

I accept the submission that this information was not and could not have been provided to the Minister before the decision was made as the applicant was not on notice concerning the delegate’s doubts in this regard. I also accept that there are exceptional circumstances to justify consideration of this information.

17    The Authority continued at AR, [8]:

The submission also makes reference to preliminary findings of the UN special rapporteur on torture and other cruel, inhuman and degrading treatment or punishment published on 7 May 2016, and reported online in the Lankan News website on 14 May 2016. I am not satisfied that this information could not have been provided to the Minister, since although it was published after the applicant’s interview on 13 April 2016, the delegate’s decision was not made until 14 July 2016 and it would accordingly have been open for this information to be submitted prior to the primary decision. As this item of new information does not fall within s 473DD(b)(i), and as this additional country information does not constitute credible personal information under s 473DD(b)(ii), I have not considered it.

Well-founded fear of persecution

Imputed political opinion as a supporter of the LTTE

18    Under this sub-heading, the Authority accepted that the referred applicant (now the appellant) was detained in an SLA rehabilitation camp for around 16 months from May 2009; that he was “mistreated” during this time; and that following his release he was required to report to the authorities on a regular basis: AR, [12]. The Authority also accepted that he was suspected by the SLA to have assisted wounded LTTE combatants in May 2009, on the basis of the video evidence that the SLA had shown him and his injuries (sustained in the bomb blast to which he referred): AR, [12]. The Authority made no express finding in respect of his claims to have been tortured and forced to sign a document stating that he assisted the LTTE.

19    The Authority also accepted the referred applicant’s submissions regarding his travel to India for a Hindu religious pilgrimage and subsequent return to Sri Lanka, including that he “may have been questioned” at the airport in Colombo on his return: AR, [13]–[14]. In relation to this travel, the Authority said, at AR, [13]:

I have considered the submissions to the IAA and the applicant’s further statement concerning his ability freely to depart Sri Lanka in 2010. These are to the effect that the applicant was not subject to any arrest warrant or court charges and was travelling with a group of persons, and the fact that he was able to freely depart did not undermine his claim to be of ongoing adverse interest to the authorities. However, I give weight to the fact that the applicant was able to [depart] Sri Lanka in 2010 as at the very least indicating that notwithstanding having been detained in a rehabilitation centre for 16 months following the end of the Civil War, he was not at the time of his departure from Sri Lanka in 2010 on any “stop” list maintained by the Sri Lankan authorities at that time. Notwithstanding any reporting conditions the applicant may have been on at the time of his departure for India, I consider the fact that he was able to depart as indicating that he was no longer considered to be of significant interest to the Sri Lankan authorities.

(Footnotes omitted)

20    In contrast to the delegate, the Authority accepted that upon his return, the referred applicant was accompanied to the location of his mother’s funeral by a CID officer. It found that these “confirmatory checks” in respect of the funeral were undertaken “in view of the history of his period of detention in a rehabilitation centre”: AR, [14]. The Authority also accepted that he was required to resume reporting to the CID for several months following his return.

21    At AR [15]-[18], however, the Authority went on to say that:

[15]    The applicant has claimed that after his return from India in 2011, in August 2012 when he was looking for work he noticed two men whom he believed were from the CID were following him. This was the trigger for him arranging to depart Sri Lanka illegally by boat in order to flee to Australia.

[16]    I consider the applicant’s concerns in relation to the two persons following him to be speculative and I do not give this claim great weight.

[17]    The applicant has further claimed that the Sri Lankan authorities came to his grandmother’s house in 2014 demanding information about the applicant’s whereabouts and contact details. He has also stated that his brother in Sri Lanka has been harassed by the authorities concerning he applicant’s whereabouts.

[18]    For the reasons set out below, I find the applicant’s claims in relation to this more recent adverse attention from the Sri Lankan authorities to be implausible, in consideration of the applicant’s profile at the relevant time.

22    Regarding the referred applicant’s profile, the Authority stated, at [19]-[22]:

[19]    I am required to assess whether the applicant now or in the reasonably foreseeable future faces the real chance of serious harm on account of any imputed political opinion as an LTTE supporter. I have considered available information cited in the primary decision contained within the current UNHCR eligibility guidelines concerning asylum seekers from Sri Lanka published in December 2012, which indicates that Tamils with particular profiles risk being persecuted in contemporary Sri Lanka on account of LTTE affiliations. The examples provided are qualified by an indication that they depend upon the individual circumstances of the case, and include:

1.    Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

2.    Former LTTE combatants or “cadres”;

3.    Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

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;

5.    LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

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

[20]    In the individual circumstances of the applicant’s own case, I accept that the applicant has been put through a rehabilitation process lasting for some 16 months from May 2009, and was required to report to the CID immediately following his release later in 2010[.] I give weight to the fact that the applicant was legally able to [depart] Sri Lanka for India towards the end of 2010. I note that while the applicant may have been placed on weekly reporting conditions immediately following his return from India, I also give weight to the fact that on the applicant’s own claim, the weekly reporting condition he was placed upon following his return from India in 2011 only continued for several months.

[21]    On the basis of the applicant’s claims which I have accepted, I do not consider that the applicant was any longer of a profile that would attract ongoing attention from the Sri Lankan authorities, a matter borne out by the fact that he was not on any reporting conditions at the time he departed Sri Lanka in 2012. For these reasons, and on a proper consideration of the applicant’s own profile by the time he departed Sri Lanka, I do not accept as plausible that family members of the applicant have more recently been questioned concerning his whereabouts.

[22]    Having considered the further country information provided to the IAA, I further find that any investigation or action concerning the applicant leading to prosecution by reason of a suspected connection to the LTTE would by this point in time have already commenced by the Sri Lankan authorities. Any considerations in respect of such prosecutions would have occurred during the period the applicant was detained in a rehabilitation centre for 16 months from May 2009. There is no claim that any prosecution has commenced, and I give weight to the fact that since that time the applicant has been able to depart Sri Lanka legally on a religious pilgrimage to India. In view of my findings concerning the applicant’s current profile and the history that I have accepted, I do not consider that he would presently be the subject of any ongoing or outstanding investigation in relation to LTTE links.

(Footnotes omitted)

23    The Authority concluded (AR, [23]) that the referred applicant “does not face a real chance of persecution on account of any imputed LTTE political opinion either now or in the foreseeable future upon return to Sri Lanka”.

Failed asylum seekers returning from a Western country and persons having illegally departed Sri Lanka

24    The Authority accepted that if the referred applicant returned to Sri Lanka, he would do so as a failed asylum seeker who departed illegally: AR, [25]. It did not accept, however, that he would face a real chance of serious harm by reason of this status, stating (AR, [26]):

Having regard to the country information in the referred material and in particular in the DFAT reports, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of his return[] as a failed asylum seeker. In particular, I note the information in the DFAT reports that thousands of Tamils have been returned to Sri Lanka since the end of the Sri Lankan civil war, including from Australia, although there have been reported instances of returnees being harmed, the information before me suggests those were people with substantial links to the LTTE or outstanding warrants. The information before me does not suggest the applicant is a person with that kind of profile.

25    The Authority accepted that by departing Sri Lanka without a passport, the referred applicant committed an offence under the Sri Lankan Immigrants and Emigrants Act 1949 (IE Act): AR, [29]. The Authority referred to DFAT country information indicating that penalties for the offence “are applied on a discretionary basis and usually in the form of a fine”: AR, [28]. It also noted that the Sri Lankan Attorney-General’s Department had advised DFAT that “no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence for their breach”. The Authority found that the referred applicant would likely be charged and fined before being released: AR, [33]. It was not satisfied that “any processes or penalties that the applicant may face … would amount to serious harm”. AR, [36].

26    The Authority found (AR, [30]) that DFAT reported that, upon return:

[R]eturnees will be processed by the Department of Immigration and Emigration, (DOIE), the State Intelligence Service (SIS) and the CID based at the airport. Immigration officers check travel documents and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters. I am satisfied on the information before me that the applicant has no identification concerns, or criminal or security records that would raise the concern of these authorities.

27    It stated further (AR, [33]):

… There is no suggestion the applicant 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.

28    The IAA accepted that the appellant “may…be detained for several days pending an opportunity to appear before a magistrate”, but found that this would not amount to serious harm as defined in the Migration Act: AR, [34].

Hindu religion

Tamil race

29    Under these two headings, the Authority noted the referred applicant’s claims to fear serious harm on the basis of his Hindu religion and Tamil ethnicity, but found support in country information before the delegate for its view that these factors would neither individually nor cumulatively give rise to a risk of serious harm in respect of the appellant: AR, [38]–[39]. The Authority was not satisfied that the appellant “has a well-founded fear of persecution for reason or combination of reasons of his race, religion, nationality, membership of a particular social ground and/or political opinion now or in the reasonably foreseeable future”: AR, [40].

Conclusion

30    The Authority concluded that the referred applicant did not meet the definition of “refugee” under s 5H(1) and did not therefore meet the criterion in s 36(2)(a) of the Migration Act: AR, [41]. For substantially the same reasons, the Authority found that the risk of harm to him did not meet the definition of “significant harm” under s 36(2A), and that he did not therefore meet the criterion in s 36(2)(aa): AR, [49].

The federal circuit court proceeding

31    An application for judicial review of the Authority’s decision was filed in the Federal Circuit Court on 26 September 2016. An amended judicial review application was filed on 22 January 2019. The applicant in these proceedings (the appellant in this appeal) was represented by counsel at the hearing.

32    The three grounds of review were as follows:

1.    The IAA constructively failed to exercise its jurisdiction by reason that the IAA failed lawfully to consider the claims made by the Applicant to satisfy the criteria for a Protection Visa under s 36 of the Migration Act 1958 (Cth) (“the Act”), or significant evidence in support of such claims.

Particulars

a.    The Applicant made various claims to fear harm in Sri Lanka. In particular, the Applicant claimed that as a Tamil, (potentially) failed asylum seeker who had been in a Western country for a long period of time and as a person who has certain adverse interactions with Sri Lankan authorities faced a real chance of being harmed by Sri Lankan Authorities on his return to Sri Lanka.

b.    In particular, the Applicant claimed that he faced a real chance of being harmed during the process of interrogation that the Sri Lankan Authorities would conduct upon his return, whether or not the Sri Lankan Authorities ultimately concluded that he was or was not a person of interest due to actual or perceived LTTE connections.

c.    The Applicant also claimed that he faced a real chance of being harmed having regard to country information to the effect that: (i) persons detained by Sri Lankan Authorities (including “normal” Tamils with no connections to the LTTE) had been tortured for the purpose of extracting false confessions that they had assisted the LTTE; (ii) persons had been tortured by the Sri Lankan Authorities so as to instil terror in the broader Tamil population and to discourage involvement with the LTTE; (iii) persons had been detained by Sri Lankan Authorities in abominable conditions and deprived of basic human rights;

d.    The IAA failed to consider these claims, or to consider this significant evidence in support of his claims.

3.    The IAA was unreasonable in assuming that the Applicant would not be a target and was no longer considered to be of significant interest to the Sri Lankan Authorities due to the fact that the Applicant travelled to India in late 2010 on a Hindu Religious Pilgrimage together with a number of others and returned to Sri Lanka in August 2011. The IAA came to a wrong conclusion in relation to the Applicant's Hindu Religious Pilgrimage. (paragraph 13-15 of the Decision).

Particulars

a.    The IAA failed to consider evidence and submissions relied upon by the Applicant in relation to the significance (if any) of his travel to and from India and the response of Sri Lankan authorities in relation to that matter.

b.    Further, or alternatively, the IAA[] reasoned, in effect, that because the Applicant left the country once in certain circumstances, and there was a particular outcome in terms of attention from the authorities, if he were to leave the country in completely different circumstances the outcome would be the same. This reasoning was seriously illogical or irrational.

c.    Further, or alternatively, the IAA reasoned from a finding in relation to Applicant's “profile” in 2014 to a conclusion in relation to real risk of harm in or after 2016 without making findings addressed to the circumstances after 2014. Accordingly, it:

i.    failed to address itself to the question of the risk to the Applicant were he to be returned to Sri Lanka in the reasonably-foreseeable future; or

ii.    failed to give proper, genuine, or realistic consideration to the risk of harm to the Applicant in the context of the further passage of time since 2014, or reached a conclusion that was affected by serious illogicality or irrationality.

4.    The IAA failed to give meaningful, or proper, genuine, and realistic, consideration to the circumstances pertaining to failed asylum seeker returning from a Western country having illegally departed Sri Lanka, and therefore to the risk of harm to the Applicant arising out of his membership of that group.

Particulars

a.    The IAA failed to take into account or give consideration to country information tending to suggest that a broader category of returnee to Sri Lanka than “those with substantial links to the LTTE or outstanding warrants” were at real risk of harm (see Reasons [26]).

b.    The IAA failed to give proper consideration to the risk that the Applicant would be remanded in custody on return to Sri Lanka, and made speculative findings in the absence of any evidence in relation to sureties or bail.

Ground “2” had a line through it.

33    The primary judge dismissed the application on 28 June 2019.

34    In his reasons, the primary judge recorded that, under the first ground, the applicant contended that the Authority had failed to engage with information relating to his claim to fear harm on the basis of imputed support for the LTTE: PJR, [21]. In particular, the applicant contended that the Authority did not have regard to: a Human Rights Watch, World Report 2016 – Sri Lanka dated 27 January 2016; a report from Minority Rights Group International, State of the World’s Minorities and Indigenous People 2015 – Sri Lanka, dated 2 July 2015; United States Department of State, 2014 Country Report on Human Rights Practices – Sri Lanka, dated 25 June 2015; the applicant’s submission concerning a Freedom From Torture report and a further submission by the applicant based on key findings from that report; a 2015 report prepared by the Oakland Institute, The Long Shadow of War – the struggle for justice in post-war Sri Lanka; a 2013 decision of the United Kingdom Upper Tribunal; a 2014 report prepared by the United States Department of State, 2013 Country Reports on Human Rights Practices in Sri Lanka; and a further Human Rights Watch Report: see PJR, [22].

35    The primary judge also recorded that, under the same ground, the applicant contended that the Authority failed to engage with his claim to fear harm because he is a member of a group of failed asylum seekers returning from a Western country having departed Sri Lanka illegally, in particular, a report prepared by the Freedom from Torture Medical Foundation and a 2014 report published by the Asylum Research Consultancy: PJR, [21], [25].

36    In relation to the first ground, the primary judge said, at [37]-[38]:

On balance, I am prepared to draw an inference that the Authority had before it and considered the country information supplied by the Applicant. The Authority stated clearly that it had the information referred to it by the Secretary … Further, … the Authority expressly refers to the statutory declaration and submission provided to the Authority by the Applicant and notes that those documents ‘provide arguments as to why the delegate’s decision was wrong and discuss country information which had already been before the delegate’. Third, the Authority expressly mentioned that it considered the Human Rights Watch Report referred to by the Applicant in his submission to the Authority … The reference to the ‘further country information’ supplied to the Authority … further supports the inference that the country information supplied by the Applicant has been considered.

The above are clear statements supporting the inference that the Authority considered the material before it, including the material alleged by the Applicant not to have been considered. I accept that it is for the Authority to attribute the weight to be given to country information. I also accept and apply the comments of the High Court in ETA067 [v Republic of Nauru [2018] HCA 46] that, inter alia, an absence of a reference to evidence does not mean that the evidence was not considered.

37    After noting that the appellant did not pursue ground 2, the primary judge turned to the third ground. His Honour stated (PJR, [51]) that this ground was put in two ways: first the applicant contended that the Authority failed to consider a substantial submission by the applicant concerning the circumstances surrounding his travel to India; and secondly it was said that the Authority’s reasoning was illogical or irrational, in so far as the Authority reasoned that the Sri Lankan authorities “would respond in the same way to a legal trip [to India] for religious reasons and for a short-term (on the one hand) as compared to an illegal trip for asylum seeking reasons and for the long-term (on the other hand)”: PJR, [53]. His Honour held that the Authority had actively engaged with and expressly recognised the relevant claims in its reasons; weighed the evidence; and reached the conclusion that the applicant was not on the stop-list and, for this reason, he was not likely to be a person of significant interest to the authorities, a finding which, so his Honour held, was open on the evidence: PJR, [57]. His Honour held that there was “nothing illogical or irrational” about the IAA determining that the appellant was no longer of significant interest to the authorities on the basis of his lawful departure from Sri Lanka in the aftermath of the civil war and subsequent return: PJR, [62].

38    The primary judge observed (PJR, [66]) that under the fourth ground, “the Applicant takes issue with the alleged failure by the Authority to give proper consideration to two claims” – his claim to fear harm on the basis of being a failed asylum seeker (PJR, [67]) and his claim as to “what will happen … on his return to Sri Lanka” (PJR [73]). As to the first, the primary judge held that this was “another way of putting the point that had been put under ground one”, and dismissed it for the same reasons: PJR, [70]. As to the second, his Honour held that the Authority’s conclusions in respect of the consequences likely follow from contravention of the IE Act were open to it, having regard to the country information upon which it relied: PJR, [79].

The appeal to this court

39    The appellant filed a notice of appeal from the primary judge’s judgment on 26 July 2019. There were five stated grounds of appeal, which were edited and annotated by hand prior to filing. The grounds of appeal, integrating these edits and annotations, were as follows:

Error of law – decision has not been given according to the law.

1.    The decision-making power of the Federal Circuit Court was not properly exercised. Therefore, the Department’s decision was not made in accordance with the principles of law and consequently the Federal Circuit Court was also affected from this failure. The Authority constructively failed to exercise [its] jurisdiction by reason that the Authority failed lawfully to consider the claims made by the appellant to satisfy the criteria for a protection visa under the section 36 of the Migration Act 1958 (The Act), or significant evidence in support of such claims. Thereby the Department [sic] made an error of law and in consequence the Federal Circuit Court was affected by the error of law.

2.    The Department [sic] failed to take into account relevant considerations and consequently the Federal Circuit Court’s decision was also affected by this failure. The appellant duly submitted the required evidence. The supporting evidence was not properly considered by the Department [sic] and the Federal Circuit Court’s decision was also affected. Therefore, the Authority’s decision should be quashed by this Honourable Court on jurisdictional error.

3.    The Federal Circuit Court was unreasonable in assuming that the appellant would not be [a] target and was no longer considered to be of significant interest to the Sri Lankan Authorities due to the fact that the appellant travelled to India in late 2010 on Hindu religious pilgrimage together with a number of others and returned to Sri Lanka in August 2011. The Authority came to a wrong conclusion in relation to the appellant’s Hindu Religious Pilgrimage. Therefore, the decisions of the Department [sic] and the authority were so unreasonable that no reasonable decision maker could have arrived at it. The appellant will be killed if he returns to his home country. Further, the appellant [has] no other country to stay except Australia. The Federal Circuit Court and the Department [sic] disregard[ed] the appellant’s real-life threats and arrived at an unreasonable decision.

4.    The Department [sic] failed to consider the most current available information when considering the question which the law prescribed and failed to engage in an active intellectual process to forces [sic] the appellant’s risk of persecution if he returns to his home country. The appellant raised evidence about his well-founded fear of persecution based on his race, religion, imputed political ideology as [a] supporter of particular social group. His evidence shows that if he returned to Sri Lanka as a failed asylum seeker, he will be killed by the Sri Lankan Authorities. The appellant’s fear is not based on mere reasons. He has a real risk of being targeted based on his imputed political opinion.

5.    The Federal Circuit Court failed to give meaningful, or proper, genuine, and realistic, consideration to the circumstances pertaining to failed asylum seeker[s] returning from a Western country having illegally departed Sri Lanka, and therefore to the risk of harm to the appellant arising out of his membership of that group.

40    On 2 August 2019, the second respondent filed a submitting notice save as to costs.

The parties’ submissions

41    The appellant, who appeared at the hearing assisted by an interpreter but without legal representation, made very brief oral submissions directed to the significance of his travel to India. Prior to the hearing, however, he had filed written submissions dated 16 January 2020. In these submissions, the appellant submitted that his fears and concerns about his safety and right to life had not been considered by the respondents, and asserted that he had a well-founded fear of persecution based on his ethnicity, religion, and imputed political ideology. The appellant submitted that the respondents had “failed to take into account relevant considerations and consequently made the decisions without concerning [sic] the real weight of the supporting information”; “failed to consider the most current available information”; and “failed to engage in an active intellectual process to determine the risk of persecution” if he returned to Sri Lanka. He submitted that the respondents arrived at an unreasonable decision and, “[i]nstead of assessing the degree of well-founded fear of persecution as prescribed by the principles of law, the Authority gave more weight to assessing the inconsistencies in [his] evidence”. The appellant also contended that he had “serious concerns about safety of [his] life as the current country’s situation [presents] even more dangers than the one [he] fled”.

42    In written submissions, the Minister submitted that the grounds on which the appellant sought to rely on appeal were not those raised before the primary judge; that the appellant required leave to raise them; and that such leave should be refused on the basis that there was no adequate explanation for the failure to raise them below and they were of doubtful merit, citing VUAX v Minister for Immigration & Multicultural & 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 noted, however, that:

[T]o some extent, the grounds generally encompass the grounds raised [in the notice of appeal]. For example, Ground 5 correlates generally with ground 4 raised in the Court below, and Grounds 1 and 4 relate to both grounds 1 and 4 raised in the Court below. In light of that fact, in dealing with each ground, the Minister will deal with those grounds as if the grounds below have been raised in this Court. If the Court is minded to grant leave, for the reasons [stated], the appeal should be dismissed.

43    At the hearing, counsel for the Minister accepted that grounds 1, 3 and 5 of the notice of appeal correspond respectively to grounds 1, 3 and 4 in the Court below and, accordingly, did not press his objection to the appellant raising these three grounds on appeal. In discussion with the Court, counsel and the appellant accepted that ground 2 did not add anything of substance to ground 1. Also at the hearing the appellant clarified that ground 4 related specifically to the UNHCR profile material, that is, to the UNHCR Guidelines before the delegate and therefore the Authority.

44    Respecting ground 1, the Minister submitted that the Authority considered all the appellant’s claims, and all country information the appellant had provided, referring to the reasons of the primary judge (PJR, [19]-[47] and the Authority’s reasons (AR, [5]-[7], [26]); and that the weight to be afforded to that information was for the Authority to determine, citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [79]. Accepting that Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38] and [46] and G v Minister for Immigration and Border Protection [2018] FCA 1229; 266 FCR 511 at [277] established that a decision-maker may fall into jurisdictional error if relevant material is ignored, the Minister submitted that it did not follow from the fact there was no express reference to certain material that that material was not considered, citing Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [31], Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34] and ETA067 v Republic of Nauru [2018] HCA 46; 92 ALJR 1003 at [13]–[14].

45    At the hearing, counsel for the Minister submitted that the Court should infer from the Authority’s reasons that the Authority accepted the appellant’s claim that he was beaten and tortured during his detention by the SLA and that he was forced to sign a document written in Sinhalese, notwithstanding the absence of specific findings about these particular matters. Counsel accepted that on this basis and on the basis that the SLA showed video evidence to the appellant of him assisting alleged LTTE combatants, the appellant would be perceived to fall within one of the Tamils-at-risk profiles identified in the UNHCR Guidelines (i.e., “Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply or transport of goods for the LTTE”). Counsel submitted that the Court should infer from the Authority’s references to the UNHCR Guidelines that the Authority accepted that the appellant fell within these “general risk categories” but proceeded to weigh this against the appellant’s individual circumstances. Counsel submitted that, having regard to these circumstances, the Authority concluded that the appellant would not face a real chance of serious harm upon return to Sri Lanka. Counsel submitted that “the [Authority’s] findings around the appellant’s ability to travel to India and what happened subsequently [were] critical” in its determination that the appellant no longer had a profile which would attract ongoing attention.

46    Regarding the Authority’s finding (AR, [22]) that any action leading to prosecution of the appellant “by reason of a suspected connection to the LTTE would … have already commenced”, counsel for the Minister submitted that here the Authority was affirming the delegate’s finding about the appellant’s non-prosecution and indicating its preference for the country information upon which the delegate had relied in this context, namely the 2015 DFAT Country Information Report. Counsel submitted that this amounted to a rejection on the Authority’s part of the country information provided by the appellant in support of his argument that the lack of prosecution was irrelevant. Counsel submitted that this was “a factor in the mix” in the Authority’s evaluation of the facts and evidence.

47    Respecting ground 2, the Minister submitted that “it is unclear what relevant considerations the Appellant alleges were not taken into account” and relied upon his submissions in response to ground 1 to the extent that ground 2 repeated the appellant’s arguments in respect of ground 1.

48    Respecting ground 3, the Minister submitted that the Authority’s weighing of the facts and evidence could not be said to be unreasonable, illogical or irrational (RS [28]–[29]). The Minister noted the Authority’s express statement to the effect that it had regard to the appellant’s evidence and submissions that his ability to depart Sri Lanka freely in 2010 did not undermine his claim to be of ongoing adverse interest to the authorities and, in particular, that the Authority had “weighed [his] submission that he was not subject to any arrest warrant or court charges and was travelling with a group of people, thus being able to leave”. The Minister drew attention to the fact that the Authority weighed that submission and evidence against its conclusion that the appellant was not on a “stop” list (as supported by country information) and for that reason was not of adverse interest to the authorities.

49    The Minister submitted that “[w]hile reasonable minds might differ about making that finding in light of the fact that the Appellant was questioned upon his return and had to report to the CID for several months”, it could not be said to be unreasonable, illogical or irrational. Citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60]–[61], the Minister contended that, for the appellant to succeed in this context, the appellant must demonstrate “extreme illogicality or irrationality”; and there must be more than “simply a complaint that one conclusion was made in preference of another”. At the hearing counsel submitted that the resumption of reporting requirements upon his return to Sri Lanka and the fact that he was accompanied by a CID officer to the location of his mother’s funeral indicated that the Sri Lankan authorities “wanted to perform confirmatory checks” as to why the appellant had returned. Counsel submitted that the Authority’s reasons demonstrated that it took “a holistic view of that period”, which included its finding that the appellant’s reporting conditions had ended by 2012.

50    Respecting ground 4, as we have seen, the Minister submitted that the Court should not grant leave to the appellant to raise this new ground. The Minister also submitted that it was “unclear what further information should have been taken into account by the Authority in considering the Appellant’s claim that he would face harm upon his return as a failed asylum seeker who had illegally departed Sri Lanka”, noting further that “[t]he DFAT country information relied upon only predated the decision by 8 months”.

51    Respecting ground 5, citing Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [42]–[45], the Minister submitted that that the language of “proper, genuine and realistic” consideration is prone to breach the divide between legality and merits and should be avoided. The Minister submitted that this ground should be rejected for the same reasons provided by the primary judge and, further, that the relevant findings were based on country information upon which the Authority was entitled to rely, citing AZG15 v Minister for Immigration and Border Protection [2018] FCA 226 at [5]–[59].

52    At the hearing, counsel for the Minister submitted that the appellant did not make “any direct specific claims … associated with how he would be treated as a returnee”. Regarding the Authority’s observation that “no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence”, counsel accepted that the appellant’s claim was not that he would be returning as a “simple passenger”, but rather that a risk of harm would arise due to his perceived links with the LTTE, but argued that the Authority’s finding on this point was predicated on its determination that the appellant was not a person “with substantial links to the LTTE”, such that its conclusion as to the appellant’s circumstances as a failed asylum seeker “incorporates [its] findings associated with what the appellant’s profile actually was in terms of his … perceived LTTE connections”.

Consideration

Leave to raise new grounds

53    It may be accepted that grounds 2 and 4 were new in the sense that neither were raised before the primary judge. It may also be accepted 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”. The appellant was represented by counsel in the Federal Circuit Court and there has been no explanation for the failure to raise these grounds in that Court. The appellant agreed that ground 2 of the notice of appeal is covered by ground 1; and, in this circumstance, there is little utility in a grant of leave. This is because the substance of ground 2 will be considered when the Court addresses ground 1. It seems to me, moreover, that the ground has insufficient merit to justify a grant of leave. Furthermore, to the extent that ground 4 of the notice of appeal overlaps with ground 4 and/or ground 5, there is little utility in a grant of leave. In so far as ground 4 might be thought to raise a new point as to whether the Authority took account of current country information (as the Minister submitted) and, in particular, the UNHCR Guidelines about Tamils at risk (as the appellant submitted), for the reasons explained below, this ground has insufficient merit to justify a grant of leave. In these circumstances, leave to raise new grounds 2 and 4 should be refused.

54    The Minister accepted that in substance grounds 1, 3 and 5 of the notice of appeal raise substantially the same matters as grounds 1, 3 and 4 of the judicial review application before the primary judge, and did not maintain his opposition to the grant of leave in so far as that was necessary. This concession is properly made. Before the primary judge, the appellant submitted, in substance, that there had been a constructive failure to exercise jurisdiction because: the Authority failed to consider the appellant’s claims or significant evidence (ground 1); the Authority’s reasoning with respect to the appellant’s travel to India was unreasonable in the legal sense (ground 3); and the Authority failed to give “meaningful, proper, genuine and realistic” consideration to the circumstances pertaining to his being a failed asylum seeker returning from a Western country who departed Sri Lanka illegally (ground 4). These are the same matters that the appellant apparently seeks to canvass under grounds 1, 3 and 5, respectively, of the notice of appeal, notwithstanding the language in which the latter grounds are framed differs from the relevant judicial review grounds. The grounds are in substance reformulations of issues agitated before the primary judge: contrast BQQ15 at [42]. For this reason, and bearing in mind the lack of opposition, I would grant leave to raise grounds 1, 3 and 5 in so far as leave is required to permit the appellant to raise these grounds.

Ground 1

55    As already noted, under this ground, the appellant raised an issue as to whether the primary judge erred in failing to find that the Authority constructively failed to exercise its jurisdiction because it failed to consider all of the appellant’s protection claims and the evidence in support of those claims. At the hearing, it was accepted that this ground raised a contention to the effect that the Authority did not consider the claim (or evidence) that while at the rehabilitation camp the appellant had been tortured and forced to sign a document which he believed was a confession that he had assisted the LTTE. I address this contention first.

56    In written submissions, the Minister addressed a separate contention made before the primary judge that the Authority failed to consider certain country information submitted by the appellant. Further, at the hearing another issue arose in argument about ground 1 concerning the Authority’s absence of prosecution finding in AR [22]. I address these two latter issues at the end of this discussion of ground 1.

Failure to deal with a claim or evidence about a forced confession?

57    It is well-established that there will be a constructive failure to exercise jurisdiction where a decision has been given in the purported performance of a duty to decide, but is vitiated because the “decision-maker misconceived its role, misunderstood the nature of its jurisdiction … or failed to apply itself to the question which the relevant statute prescribed”: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 at [41] (Gummow J). Error of this kind may be shown where the Tribunal fails to evaluate a “substantial, clearly articulated argument relying upon established facts”, and where the nature of this failure is sufficient to suggest that the Tribunal misunderstood its statutory task: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]–[25] (Gummow and Callinan JJ); MZYTS at [52]–[54]. In this context, there is no clear distinction between claims and evidence. As Robertson J said in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]: “[t]he fundamental question must be the importance of the material to the exercise of the [decision-maker’s] function and thus the seriousness of any error” and “the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself”. While the decision-maker in that case was the Refugee Review Tribunal (now the Administrative Appeals Tribunal), it is well accepted that these principles also apply to the Authority: see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]. Thus, in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [79], a Full Court had earlier held that:

A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

The appellant’s claim that he had been tortured and forced to sign a document which he believed might have been a confession to his involvement in the LTTE

58    It may be accepted that the appellant claimed that he had been tortured and forced to sign a document which he believed might have been a confession to his involvement in the LTTE and that he feared that in consequence he would be imputed with a pro-LTTE political opinion and harmed on his return to Sri Lanka.

59    In his 14 January 2016 statutory declaration referred to at [4]-[5] above, the appellant said:

The SLA captured me and they held me captive for many many months. Under threat for my life, the SLA tried to force me to sign a paper to say I worked for the LTTE. I was beaten until I signed the paper but I am unsure what the paper said exactly. … The SLA told the Red Cross that I had admitted to working for the LTTE.

…

I believe if I return to Sri Lanka I would be seriously harmed and or killed by the Sri Lankan authorities. Since they believe I am an LTTE supporter, and made me sign a document under duress confessing my membership to the group, I believe it is almost certain I will be targeted.

60    In the 27 April 2016 submissions also referred to at [4]-[5] above, the appellant’s migration agent affirmed that “[t]he Applicant was badly tortured and forced to sign an admission that he had assisted the LTTE”, adding under “Comments on Concerns raised at the Applicant’s Interview”:

[O]f particular importance is the fact the applicant was tortured and forced to sign a confession that he did assist the LTTE.

61    For this and other reasons, the agent submitted that CTE16 had a profile that would “place the applicant at risk of serious harm upon return to Sri Lanka”. At another point, these submissions reiterated that:

The fact [the Sri Lankan authorities] hold a signed confession he assisted the LTTE, can be used against the applicant in the future, especially upon re-entry to the country when it is likely he will be questioned about his background.

62    The appellant referred to the same event in his 8 August 2016 statutory declaration and his migration agent’s 8 August 2016 submissions, to which reference has already been made: see [10]-[11] above. In this declaration, he said:

Under torture, I signed documents written in Sinhalese. … I am unaware of what was written in the documents that I was made to sign under torture but I fear that it contained confessions that I worked for the LTTE. I fear that if I return to Sri Lanka, I will be detained and charged for having left Sri Lanka illegally and these confessions along with the video evidence will be used by Sri Lankan authorities to persecute and harm me.

63    In the accompanying submissions, his migration agent submitted that the delegate had made “positive findings” that CTE16 “was made to sign documents that may have confessed to involvement with the LTTE” and were “relevant to an assessment of his cumulative risk profile”. The same submissions stated that “[t]he applicant strongly fears that [] Sri Lankan authorities are in possession of involuntary confessions from him admitting to involvement with the LTTE and also hold other video evidence that they may choose to rely on”.

64    That the relevant claim was clearly made is established by the evidence and submissions identified above. I turn to discuss whether it can be inferred from the Authority’s statement of reasons that it considered the claim.

Proper inference is that the IAA considered the forced confession claim

65    The Authority specifically mentioned CTE16’s forced confession claim in its written statement of reasons for its decision made by it in conformity with s 473EA(1)(b) of the Migration Act. Under the heading “Applicant’s claims for protection”, the Authority stated that his “claims contained in the information referred to” it included that:

He was detained by the SLA and the CID for a prolonged period lasting around 16 months from mid May 2009. During this time he was beaten, tortured and forced to sign a document stating he assisted the LTTE …

As already noted, however, the Authority did not specifically return to this claim in its ensuing discussion.

66    For the reasons explained by Perry J in EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 at [47], it may be accepted that, in determining whether the Court should infer that the Authority considered the claim in these circumstances, the Court should pursue the same approach as it would have done had the decision-maker been the Administrative Appeals Tribunal, rather than the Authority. In this context, it is accepted that the fact that a matter is not mentioned may entitle a court to infer that the decision-maker did not consider the matter to be material: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ) and [68] (McHugh, Gummow and Hayne JJ). It does not follow from the fact that a matter is not mentioned, however, that the matter was not considered: SZGUR at [31] (French CJ and Kiefel J), [48] (Gummow J). There may be another reason for the failure to refer to the matter. As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

67    In this case, the proper inference to be drawn is that, having acknowledged the appellant’s forced confession claim, the Authority had no occasion to return to it because it was subsumed in findings of greater generality and significance.

68    Under the heading, “Imputed political opinion as a supporter of the LTTE”, the Authority accepted that CTE16 was imputed with a pro-LTTE opinion at the time he was in the army rehabilitation camp in 2009. The IAA said (AR, [12]):

I accept on the basis of the applicant’s claims that he was held in an Army rehabilitation camp for around 16 months from May 2009, and was mistreated during this period. I accept that the applicant was suspected by the Army to have assisted wounded LTTE combatants in the period prior to the end of the Civil War in May 2009, on the basis of evidence including video evidence and on the basis of the applicant’s injuries. The applicant’s evidence is that his injuries were sustained as the result of a bomb blast the applicant was exposed to as a civilian but that his injuries may have been regarded by the Sri Lankan authorities as an indication of him having had some form of combat role. I also accept that the applicant was required to report on a regular basis following his release from the rehabilitation centre.

(Emphasis added)

69    The Authority also accepted CTE16’s evidence that on his return from India in 2011 he may have been questioned at the airport; that he was accompanied to his mother’s funeral by a CID officer; and that he was required to report to the CID for several months after his return: AR, [14].

70    Except for his claim that two men had followed him in August 2012, which it considered “speculative” and not to be given “great weight” (AR, [16]), the Authority did not apparently doubt, and certainly did not expressly reject any of CTE16’s claims and evidence about events while he was in Sri Lanka. Nonetheless, the Authority concluded that, if he returned to Sri Lanka, CTE16 would not face a real chance of harm “on account of any imputed political opinion as an LTTE supporter”, having regard to the country information (AR, [19], [22]); CTE16’s evidence that he had not been stopped on his way to India (AR, [13], [20]); that his reporting conditions on his return to Sri Lanka from India had only lasted for several months (AR, [20]); and that no prosecution had been commenced against him respecting any LTTE connection (at [22]). In focusing on these matters, the Authority was careful to reiterate that it accepted CTE16’s claims about being “put through a rehabilitation process” in 2009, his reporting conditions subsequent to his release in 2010, and his reporting conditions on return from India, before recording its finding that CTE16 no longer had a profile that “would attract ongoing attention from the Sri Lankan authorities” “on account of any imputed LTTE political opinion”: AR, [20]-[23].

71    Reading the Authority’s reasons as a whole, it cannot be inferred that CTE16’s forced confession claim was not considered by the Authority simply because, having noted it at the outset of its reasons, it did not expressly return to it. CTE16’s evidence about the forced confession was that the document he was required to sign was in Sinhalese and that as he was unable to read Sinhalese, he could not know what it said. In this circumstance, bearing in mind the Authority’s otherwise careful analysis, it may be inferred that CTE16’s claim about the forced confession was subsumed in the Authority’s acceptance that while in the rehabilitation camp the Sri Lankan authorities imputed CTE16 with a pro-LTTE political opinion based on the video he was shown and its general finding about CTE16’s mistreatment in the army rehabilitation camp. Alternatively, it may be that the Authority did not return to the forced confession evidence because it considered the evidence to have no weight, given that CTE16 could not give evidence about the contents of the document he signed, and therefore would not have relied on it in arriving at its findings of material fact: compare SZSRS at [34].

Any error in not considering the evidence or submission could not have been jurisdictional

72    In any event, even if the Authority had not considered CTE16’s forced confession evidence this would not have amounted to jurisdictional error.

73    A constructive failure to exercise jurisdiction is not a mere failure to consider a matter that may be contingent or otherwise insignificant. Here, CTE16’s fundamental claim was, relevantly, that he feared harm because he would be imputed with a pro-LTTE political opinion on his return to Sri Lanka. His claim, evidence and submissions about the forced confession were relevant to this fundamental claim. In his case, however, having regard to the whole of the Authority’s reasons, the matter was not material to the Authority’s decision. As explained above, the Authority’s decision turned on events after CTE16’s internment in the army rehabilitation camp when the forced confession was said to have been obtained. For this reason, the failure to consider this claim was not capable of altering the Authority’s decision and any failure to consider it could not have amounted to jurisdictional error.

Failure to deal with most recent country information?

74    It is well established that where the Authority does not refer to particular country information, it may be inferred that it preferred the country information to which it did refer. The weight to be given to country information is, subject to the principles of legal unreasonableness, a matter for the decision-maker: NAHI at [11]; SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 at [27].

75    The appellant referred to numerous sources of country information in his 27 April 2016 and 8 August 2016 submissions: see [4] and [13] above. From the Authority’s reasons at [5]–[8], it may be inferred that it had regard to all the country information to which the appellant referred, save for the preliminary findings of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment published on 7 May 2016 and reported online in the Lankan News website on 14 May 2016. With respect to this “new information”, the Authority did not consider that s 473DD of the Migration Act was satisfied: AR, [8]. The appellant did not contend that this finding was in error and, in any event, no error is apparent. The Authority indicated that it otherwise had regard to the country information in the 8 August 2016 submission as well as the material referred to it by the Secretary under s 473CB of the Migration Act, which would have included the 27 April 2016 submissions: AR, [5]-[7].

76    The Authority’s reasons indicate that it largely relied on DFAT reports, particularly a DFAT report dated 18 December 2015: see, e.g., AR, [13], [19], [26], [28], [30], [32], [39]. It also referred to some non-DFAT country information, which had been mentioned by the delegate in the footnotes to the delegate’s reasons. The Authority did not expressly refer to any sources of country information that had been submitted by the appellant, but this does not demonstrate error in its approach. It was open to the Authority to prefer and give more weight to the information provided by DFAT, especially as most of the country information provided by the appellant pre-dated the information in the December 2015 DFAT report: see also DIJ16 v Minister for Home Affairs [2019] FCA 1038 at [37] (Mortimer J).

77    I also note that the Authority’s reasons indicate that it did not confine its attention to the December 2015 DFAT report. Its reasons with respect to the appellant’s claim to fear harm as a failed asylum seeker refer to the “DFAT reports”: see AR, [26] and [30]. It should be borne in mind that the delegate had referred to DFAT reports other than the December 2015 DFAT report, which it may be inferred were referred to the Authority by the Secretary under s 473CB of the Migration Act and the subject of its reasons at this point. Further, the appellant did not make any submission to the Authority to the effect that the December 2015 DFAT report was inaccurate or unreliable in any respect even though the delegate had made repeated and extensive reference to that report in the delegate’s reasons.

Country information and the absence of prosecution finding

78    As already indicated, a further issue arose at the hearing in connection with ground 1. This concerned the Authority’s finding that any action leading to prosecution of the appellant “by reason of a suspected connection to the LTTE would … have already commenced” by the time the appellant departed Sri Lanka: AR, [22]. Regarding this issue, I accept that, as the Minister submitted, the finding was justified by reference to the country information to which the delegate referred in the delegate’s decision record at [38]. This information would also have been before the Authority: see Migration Act, s 473CB. The decision record indicated that page 14 of the 18 December 2015 DFAT report showed that “those with an actual or perceived association with the LTTE would have likely been arrested, detained and prosecuted through Sri Lanka’s criminal courts, often following a period of detention in a rehabilitation centre”.

79    The Authority, at AR, [22], was not making a finding that the absence of a prosecution indicated that the appellant was of no interest to the authorities. Rather, in the broader context of the Authority’s reasons, the absence of prosecution finding was a further factor supporting its conclusion that the appellant did not have a sufficiently significant profile to be of relevant interest to the Sri Lankan authorities on return to Sri Lanka. It may be inferred from the Authority’s reasons (AR, [21], [26]) that it considered that only certain individuals, with a sufficiently significant profile, were at risk of serious harm on their return.

80    For essentially the same reasons, it cannot be said that the finding at AR, [22] was illogical or irrational in the relevant sense: see [84] below.

81    For the reasons stated, I would reject ground 1.

Ground 2

82    As noted above, the appellant agreed that ground 1 covered ground 2. Since ground 1 fails, then so too would ground 2.

Ground 3

83    As we have seen, by ground 3, the appellant contended that it was legally unreasonable for the Authority to conclude that he was no longer of significant interest to the Sri Lankan authorities due to the fact he had been able to travel to India in late 2010 and to return to Sri Lanka in August 2011.

84    The principles with respect to legal unreasonableness and irrationality are well-established: see, e.g., Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131]; and CQG15 at [60]–[61]. For present purposes, it is sufficient to say that the standard for jurisdictional error of this kind is high and where an individual finding is being impugned, there must be “extreme” illogicality which affects the decision-maker’s ultimate conclusion if the appellant is to succeed.

85    The appellant challenged the Authority’s finding at AR, [13], to the effect that he was no longer of significant interest to the Sri Lankan authorities at the time he travelled to India. This paragraph was as follows:

I accept that in late 2010 the applicant travelled to India on a validly issued passport after his release from detention, together with a number of others on a Hindu religious pilgrimage, and that the applicant returned to Sri Lanka in August 2011. I have considered the submissions to the IAA and the applicant’s further statement concerning his ability freely to depart Sri Lanka in 2010. These are to the effect that the applicant was not subject to any arrest warrant or court charges and was travelling with a group of persons, and the fact that he was able to freely depart did not undermine his claim to be of ongoing adverse interest to the authorities. However, I give weight to the fact that the applicant was able to depart[] Sri Lanka in 2010 as at the very least indicating that notwithstanding having been detained in a rehabilitation centre for 16 months following the end of the Civil War, he was not at the time of his departure from Sri Lanka in 2010 on any “stop” list maintained by the Sri Lankan authorities at that time. Notwithstanding any reporting conditions the applicant may have been on at the time of his departure for India, I consider the fact that he was able to depart as indicating that he was no longer considered to be of significant interest to the Sri Lankan authorities.

(Emphasis added; footnote omitted)

86    As we have seen ([12] above), the appellant had previously stated that he had obtained a visa to travel to India with a village group on a pilgrimage to visit a temple to fulfil religious vows. Also in his 8 August 2016 statutory declaration, he stated that:

I did not have any arrest warrants or court charges against me and I was travelling in a group and that is why I was able to leave without any trouble.

87    In submissions of the same date ([10] above), his migration agent wrote:

The delegate has placed unreasonable weight on the applicant’s ability to depart Sri Lanka unhindered to support a finding that the applicant was not of adverse interest to Sri Lankan authorities. The applicant left as part of a group from his village travelling to India to fulfil a religious vow… As the applicant did not have any extant court orders or arrest warrants against him it was unlikely that he would be stopped at the airport while leaving legally on a valid visa as part of a group of pilgrims travelling to India in 2010.

88    In its reasons (AR, [13]) the Authority expressly acknowledged these submissions, stating that it had considered them. Nonetheless, the appellant’s unimpeded departure from Sri Lanka led the Authority to conclude that he was no longer of significant interest to the Sri Lanka authorities. This finding was neither illogical nor irrational. It was reasonably open to the Authority to reason that the appellant’s untroubled departure indicated that he was not at that time on any official “stop-list”, the significance of which was explained in the 18 December 2015 DFAT report (to which reference has already been made: see [76] above). It may be inferred that the stop-list was a list of persons of continuing “significant” interest to the Sri Lankan authorities, and whose departure was impeded or stopped at an airport prior to a point of departure from the country. The Authority’s finding in this regard was consistent with the appellant’s own statements to the effect that he was able to travel to India because he did not have any arrest warrants or court charges against him.

89    This is not to say that the Authority found that the appellant was not of any interest to the authorities at the time he departed to India. The Authority’s finding was limited to “significant” interest. It is clear from the broader context of the Authority’s reasons that it accepted the appellant’s claim to have been of some continuing interest to the Sri Lankan authorities, given that it accepted his account of being questioned on his return from India, escorted to his mother’s funeral and required to report for a period after his return: AR, [14].

90    In any event, even if this finding were capable of being characterised as illogical or irrational, it would not follow that the Authority’s decision was affected by jurisdictional error. The appellant’s ability to travel to India was only one of a number of matters that led to its conclusion that he would not be harmed on his return to Sri Lanka. Whilst the Authority placed “weight” on this factor (AR, [20], [22]), it also placed weight on the fact that the appellant’s reporting conditions on his return from India had only continued for several months (AR, [20]); that he had not been prosecuted for any suspected connection to the LTTE (AR, [22]); and that the country information indicated that only those persons with “substantial links” or “outstanding warrants” were at risk of harm on return (AR, [26]).

91    For these reasons, I reject ground 3.

Ground 4

92    In substance, the appellant relevantly claimed that the Authority failed to consider the most up-to-date available country information when considering his claims to fear serious harm on return to Sri Lanka. As I have already said ([74]-[77] above), it may be inferred from the Authority’s reasons that it had regard to all the country information to which the appellant referred, save for “new information” that did not satisfy s 473DD of the Migration Act. It was open to the Authority to prefer, as it did, the 18 December 2015 DFAT report, which was in fact the most recent report at the time the Authority made its decision.

93    The appellant’s claim that the Authority failed to have regard to the UNHCR Guidelines is untenable. The Authority clearly and sufficiently addressed the appellant’s submission that he fell within one of the specific risk category that the Guidelines identified (i.e., “former LTTE supporters who did not undergo military training but were involved in sheltering or transporting LTTE personnel”). The Authority specifically stated that it considered the relevant UNHCR Guidelines. It listed the relevant categories of persons at risk, stating correctly that “[t]he examples provided are qualified by an indication that they depend upon the individual circumstances of the case”: AR, [19]. The Authority identified those aspects of the appellant’s history that it accepted might place him at risk of harm as well as those aspects that indicated, as it found, that the appellant was no longer “of a profile that would attract ongoing attention from the Sri Lankan authorities”: AR, [21]. Bearing in mind that the UNHCR Guidelines themselves emphasised that even if a person falls within a listed category, whether it should be concluded that that person is at relevant risk depends on the particular circumstances of the person’s case, there can be no error in this reasoning and analysis.

Ground 5

94    Ground 5 claimed that the Authority failed to give “meaningful, or proper, genuine and realistic consideration” to the circumstances pertaining to him as a failed asylum seeker from a Western country who had departed Sri Lanka illegally. The appellant’s migration agent had addressed this matter in his 27 April 2016 and 8 August 2016 submissions. As the Authority observed, the appellant did not provide very many details of the specific claim to fear harm “as a failed asylum seeker who departed Sri Lanka illegally”: AR, [24].

95    Under the heading “Failed asylum seekers returning from a Western country and persons having illegally departed Sri Lanka”, the Authority said (AR, [26]):

Having regard to the country information in the referred material and in particular in the DFAT reports, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of his return[] as a failed asylum seeker. In particular, I note the information in the DFAT reports that thousands of Tamils have been returned to Sri Lanka since the end of the Sri Lankan civil war, including from Australia, although there have been reported instances of returnees being harmed, the information before me suggests those were people with substantial links to the LTTE or outstanding warrants. The information before me does not suggest the applicant is a person with that kind of profile.

96    On this basis, the Authority held that it was not satisfied that the appellant faced a real chance of serious harm (or real risk of significant harm) on the basis that he was a failed asylum seeker. The appellant has not shown any relevant error in the Authority’s reasoning and conclusion.

97    Likewise, after referring to the country information in DFAT reports, the Authority was not satisfied that the appellant would face a real chance of serious harm (or real risk of significant harm) on the basis that he had departed Sri Lanka illegally. In particular, the Authority said (AR, [33]):

There is no suggestion that the applicant 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 a fine, surety or guarantee would not of itself constitute serious harm. … 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 no real chance that the applicnts would face imprisonment.

98    The Authority also noted that the appellant might be detained “for several days pending an opportunity to appear before a magistrate” and concluded that his detention would be brief and would not constitute serious harm within the meaning of the Migration Act. It observed that the relevant Sri Lankan legislation applicable to persons departing the country illegally was of general application and there was nothing to indicate it was applied in a discriminatory way: AR, [35].

99    It has been said that the language of “proper, genuine and realistic consideration” is generally to be avoided: Maioha at [42]–[45]. This language added little to the appellant’s case at this point, and the appellant has not shown any relevant error in the Authority’s conclusion that “[c]onsidered singularly or cumulatively”, it was not satisfied that “any processes or penalties that [the appellant] might face as a person who left Sri Lanka illegally” would amount to serious harm. The Authority’s reasons do not indicate a substantive failure to have regard to the appellant’s claimed fear of harm as a failed asylum seeker who had illegally departed Sri Lanka.

100    For these reasons, ground 5 must be rejected.

Disposition

101    For the reasons stated, in so far as necessary to do so, I would grant leave to raise grounds 1, 3 and 5 of the notice of appeal, and refuse leave to raise grounds 2 and 4. Further, for the reasons stated, the appeal should be dismissed, with costs.

Associate:

Dated:    7 July 2021