Federal Court of Australia

GOT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 405

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs to be assessed by a registrar if not agreed, with liberty granted to the appellant to apply to vacate such costs order within 14 days.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    This appeal arises out of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV). The appellant contends that the decision is affected by jurisdictional error because the Authority constructively failed to exercise jurisdiction because of the manner in which it used a Department of Foreign Affairs and Trade (DFAT) report; and because it failed to consider a claim of central importance relating to extortion or demands for money or risk of ransom by the Criminal Investigation Department (CID) of the Sri Lanka Police on the appellant's return to his village.

2    The primary judge held that there was no merit in either contention and accordingly dismissed the appellant's application: GOT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1697. In this appeal the appellant contends that his Honour erred in doing so.

3    At the time of the hearing of this appeal, the relevantly identical argument relating to the DFAT report had been argued in a separate case before Besanko J. His Honour's reasons were later published: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BOA18 [2021] FCA 943. The decision was the subject of an application for special leave to appeal to the High Court brought by the visa applicant. On 17 February 2022 the application for special leave was refused.

Background

4    The appellant is a Sri Lankan national, who claims to fear serious harm if required to return to his country of nationality by reason of his Tamil ethnicity and political activities as a member of the Tamil United Liberation Front (TULF).

5    The appellant arrived in Australia on 17 August 2012. On 16 January 2013 he participated in an entry interview with the Department of Immigration and Border Protection.

6    The appellant lodged an invalid application for a Protection (Class XA) (Subclass 866) visa, which was supported by a statutory declaration dated 1 August 2013. The application was invalid because the appellant was an 'unauthorised maritime arrival' within the meaning of s 5AA of the Migration Act 1958 (Cth): s 46A and s 91K. In December 2014, however, the Act was amended to introduce the so-called Fast Track Assessment process and on 20 August 2015 the appellant was invited by the Minister to apply for either a Temporary Protection (subclass 785) visa (TPV) or a SHEV.

7    The appellant lodged a valid SHEV application on 11 September 2015, together with a second statutory declaration dated 8 September 2015. He attended an interview with the delegate in relation to his SHEV application on 20 November 2015.

8    In January 2016 the Department informed the appellant that it required additional information or documents. On 28 January 2016 the appellant provided the additional information to the Department.

9    On 5 May 2016 the appellant was notified that a delegate of the Minister refused to grant the visa. Reasons of the delegate were attached. The delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations.

10    The delegate's decision was automatically referred to the Authority for review under Part 7AA of the Act on 6 May 2016.

11    On 29 June 2016 the Authority notified the appellant by letter that it had affirmed the decision not to grant the visa, attaching its decision and reasons.

12    The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision. The application was dismissed. An appeal from that decision was successful, and the matter was remitted to the Authority.

13    On 8 October 2018 the Authority notified the appellant that it would be reconsidering his case. The appellant had assistance from a migration agent who provided a submission and two articles to the Authority on his behalf. The first article was from 'Human Rights Watch' titled 'Sri Lanka: New Prime Minister Puts Rights at Grave Risk'. The second was an opinion piece published in Al Jazeera titled 'Sri Lanka's Tamils are at imminent risk after Rajapaksa's return'.

14    The submission indicated that the appellant sought to make a sur place claim based on the change in circumstances in Sri Lanka since his departure.

15    The submission stated:

Sur place claim for [appellant]

The Sri Lankan President Maithripala Sirisena has, on 26 October 2018, controversially appointed former President Mr Mahinda Rajapaksa as Prime Minister replacing the current Prime Minister Ranil Wickremasinghe.

Arbitrary arrests, torture, sexual violence and enforced disappearance of the Tamils were common during Mr Rajapaksa's time as the President of Sri Lanka. Now he has come into power again. These human rights abuse will be on the increase with Mr Rajapaksa coming into power.

The Human Rights Watch reported as follows:

'Rajapaksa's return to high office without any justice for past crimes raise chilling concerns for human rights in Sri Lanka' said Brad Adams.

Aljazera reported similar risks facing the Tamils with Rajapaksa's return.

I have attached copies of both the reports for your information.

We submit that this change of politically environment will put the applicants in much greater danger. The risk of arbitrary arrest and torture has increased manifold with the appointment of the former president as the Prime Minister.

We humbly request that the Reviewer include in the assessment, the change of political environment and the increased risks of harm of [the appellant] for his political affiliation with TULF.

16    On 21 November 2018 the Authority notified the appellant that it affirmed the delegate's decision not to grant him a protection visa and provided reasons.

17    The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision, and on 29 July 2020 the primary judge dismissed the application for review. The appellant now appeals from this judgment of the Federal Circuit Court.

Statutory context

18    Part 7AA of the Act provides a limited form of review of certain decisions to refuse protection visas to some visa applicants. This includes applicants who are unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014, and so includes the appellant in this case.

19    The manner in which Part 7AA operates is the subject of a number of High Court authorities: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [13]-[38]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [3]-[17]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [2]-[8]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439.

20    The review conducted by the Authority is a limited form of merits review established under Part 7AA of the Act. In contrast to the comparable review processes for migration decisions in Parts 5 and 7, there is no obligation on the Authority to invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (compare s 360 and s 425). The Authority may obtain new evidence it considers may be relevant and that was not before the decision-maker, as provided by s 473DC. No new information is to be taken into account unless certain criteria set out in s 473DD are met. Reviews are generally conducted on the papers.

21    In Plaintiff M174/2016 Gageler, Keane and Nettle JJ explained aspects of the fast-track regime as follows:

[17]    Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination.

22    Because the Authority is engaged in a de novo consideration of the merits of the decision that has been referred to it, it would be a constructive failure to exercise jurisdiction to the extent that the Authority did not bring its own mind to bear on a factor which it is required to consider: LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166 at [5].

Information before the Authority

23    In conducting its review, the Authority had regard to the material referred to it by the Secretary of the Department under s 473CB of the Act.

24    It also had regard to the submissions provided on behalf of the appellant dated 14 November 2018, and the two articles concerning the (then) recent appointment of former president Mahinda Rajapaksa as Prime Minister, stating:

5.    The applicant's representative provided a submission to the IAA, dated 14 November 2018. It refers to information within and includes two articles concerning the recent appointment of former President Mahinda Rajapaksa as Prime Minister replacing Ranil Wickremasinghe. Both articles express concern as to the state of human of human rights in Sri Lanka and the situation for Tamils as a result. The contents of the submission and the articles are new information. Given the importance of the new information, I consider there are exceptional circumstances to justify considering this new information under s.473DD(a). As the information is recent, it is information that was not, and could not have been provided to the delegate before the delegate made his decision and therefore s.473DD(b)(i) is met in relation to it.

25    The Authority also considered as new information under s 473DD(a) the latest DFAT report concerning Sri Lanka, being its report dated 23 May 2018 (2018 DFAT report), stating (under the heading 'Information before the [Authority]'):

6.    In this decision, I have also considered new information, namely the latest Department of Foreign Affairs and Trade (DFAT) report concerning Sri Lanka. This report is much more recent than the older one referred to by the delegate and it is a highly authoritative source. I consider there are exceptional circumstances to justify considering this new information under s.473DD(a).

Protection claim

26    The Authority summarised the appellant's claims under the heading 'Applicant's claims for protection' as follows (at para 7):

•    He began working as a storekeeper at Sivakumar Stores in Jaffna in 1997. In 2001 his boss at the store, the TULF Jaffna district organiser, was shot and killed. The applicant continued working at Sivakumar Stores until 2011 and while there, made connections with people who worked for the TULF. He had been associated with the TULF since 2001 but joined it in 2005. After 2011 he worked part time at the shop so he could concentrate on work with the TULF.

•    He was harassed, threatened and beaten because of his involvement with the TULF. Because of the work he was doing for the TULF, he had problems with the Criminal Investigation Division (CID) of the Sri Lankan police. Three or more times he had threatening phone calls from the CID, saying that he should not participate in any elections.

•    On 20 July 2012, he was forcibly detained by four CID officers who took him to an abandoned railway station where they beat and kicked him. He was threatened with disappearance unless he ceased his work with the TULF. He was taken at 9.00am and released at 1.00pm that day. He fears assault, kidnapping and murder at the hands of the CID on the basis of his political views and involvement with the TULF.

•    He also fears harm due to his Tamil ethnicity, as Tamils do not have freedom to live in Sri Lanka.

•    Since he left Sri Lanka, the Eelam People's Democratic Party (EPDP) is trying to make the Tamil people move from his village. He heard from his wife that they have demolished the community centre and the primary school and have threatened to kill all of the Tamil men.

•    He was injured by a bombing carried out by the army on 6 January 2008. He was out the front of his house in Jaffna when the army attacked and bombed the house next door. His injuries caused permanent loss of vision in his left eye.

The Authority's findings

27    The Authority accepted significant parts of the appellant's claims.

28    The Authority accepted that the appellant was associated with the TULF and became a member and worked and campaigned for the party. It accepted various parts of his claims (under the heading 'Well-founded fear of persecution', and having cited s 5J of the Act), stating as follows:

11.    The applicant has given consistent and fairly detailed evidence about his involvement in the TULF and his experiences with the Sri Lankan authorities. His claims are also supported in part by a submitted copy of a letter from the Secretary General of TULF. I accept that he was associated with the TULF and became a member and worked and campaigned for the party. I accept that on three or more occasions he had threatening phone calls from the CID, saying that he should not participate in any elections. I accept that due to these calls he went to stay at his wife's aunt. I accept that the CID took his brother and he was called by them and had to come. I accept that he was interrogated by the CID about the work he was doing for the TULF and that he had to give them money. I accept that he was forcibly detained by CID officers who took his wallet and that they took him to an abandoned railway station where they beat and kicked him. I accept that he was threatened with disappearance unless he ceased his work with the TULF. I accept that after he departed Sri Lanka, the Sri Lankan authorities visited his wife to ask about his whereabouts.

(emphasis added)

29    The Authority said that it took into account and placed some weight on the news articles submitted by the appellant:

12.    I have taken into account that the submitted articles about the appointment of Mahinda Rajapaksa as Prime Minister on 26 October 2018 and the concerns that this may lead to a decline in human rights in Sri Lanka particularly for Tamils and political opponents and given these some weight. However, I note that Maithripala Sirasena continues as President of the country and that these concerns appear speculative and that the articles do not report an actual worsening of the human rights situation for Tamils and political opponents.

30    The Authority said that in making its findings it placed considerable weight on the 2018 DFAT report, stating:

13.    In making my findings, I have given considerable weight to the latest report of DFAT as it is authoritative, fairly recent and is based on DFAT's on-the-ground knowledge and discussions with a range of sources in Sri Lanka and it has taken into account relevant and credible open source reports and it has been prepared with regard to the current caseload for decision-makers in Australia. DFAT state that conditions in Sri Lanka, particularly in the north and east (where the applicant comes from) have significantly improved since the ending of the war in 2009 and from when the applicant left the country. DFAT have assessed that monitoring of Tamils in day-to-day life in has decreased significantly under the current government though surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues. They state that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. DFAT state that they are not aware of any evidence to suggest that Sinhalese, Tamil, Muslim or other parties face any differences in treatment and that they understand Tamils do not receive unwarranted attention from authorities because of their political involvement. They make no mention of TULF members being targeted. There is nothing before me that indicates that TULF members have been targeted in recent years.

(footnote omitted)

31    The Authority continued:

14.    The applicant has not claimed to have had any political involvement since he departed Sri Lanka. Whilst, he stated that his wife had been visited about his whereabouts since his departure from Sri Lanka he gave evidence at his SHEV interview (held on 20 November 2015) that this had ceased. The applicant also gave evidence at the SHEV interview, that the TULF party now only had one member and one elderly person in their office which indicates that it is now only a small opposition group and therefore less far less likely to be of adverse interest to the Sri Lankan authorities. TULF is a legally recognised political party in Sri Lanka and just one of many which further indicates that his past or future involvement in it would not lead to any targeting by the authorities. His past mistreatment and targeting by the CID occurred a substantial period of time ago. After considering all the country information and his individual circumstances, I find that the chance that he will face any harm on account of his past and any future political activities with TULF to be remote and not real.

15.    DFAT assess that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing. They assess that there is no official discrimination on the basis of ethnicity in public sector employment but that limited Tamil appointments are a result of a number of factors including disrupted education because of conflict and language constraints. DFAT have stated that the number of incidents of extrajudicial killings, disappearances and abductions for ransom, including incidents of violence involving former LTTE members has reduced significantly since the ending of the conflict.

(footnotes omitted)

32    The Authority also found that it did not accept there to be a real chance that he would face serious harm upon return due to him being a Tamil male from the north of Sri Lanka (para 16). That was based on the 2018 DFAT report which assessed Sri Lankans of all backgrounds to face a low risk of official or societal discrimination and noted the number of incidents of extrajudicial killings, disappearances and abductions and ransom (including violence) has reduced significantly since the end of the conflict. The Authority accepted that he may face a low risk of societal or official discrimination, but recorded both his and his wife's employment as indicating that they would have no financial difficulties.

33    In regard to the claim that the EPDP is trying to make Tamil people move from his village, and have threatened to kill Tamil men, the Authority said:

17.    … [The appellant] submitted a Tamilwin article, dated 22 November 2012, 'Soldiers and EPDP cadre are threatening that they would shoot and kill men in Kottadi area, Jaffna'. Whilst the article states that threats were made, there is nothing before me to indicate that there have been killings of Tamil men in the area. The article is now six years old and the applicant has not claimed that the EPDP or army have ever threatened his wife or threatened to take the applicant's home or property. I have not accepted that the applicant has had any involvement with the TULF. I note that in 2015, DFAT stated that it was aware of unverified credible reports that the EPDP continues to be active in Sri Lanka, including criminal activity. However, I note that recent information from DFAT is that the number of incidents of extrajudicial killings, disappearances and abductions for ransom, has reduced significantly since the ending of the conflict and that in their recent and detailed report on the situation in Sri Lanka, they make no reference to the EPDP targeting anyone. Given all this, I find that the applicant does not face a real chance of any harm on account of these claims.

34    I interpolate to add that the sentence 'I have not accepted that the applicant has had any involvement with the TULF' in para 17, read literally, is clearly incorrect having regard to the Authority's findings at para 11. Either the author was referring to the period after the appellant left Sri Lanka (the more likely explanation) or the 'not' and 'any' are superfluous. Either way, the primary judge also commented on this clear error and nothing arises from it on this appeal.

35    The Authority accepted the claims that the appellant worked at a store in Jaffna and that his boss, who was the Jaffna TULF organiser, had been killed in 2001. The Authority found that the appellant would not face a real chance of any harm on account of these claims due to the long passage of time that had passed (para 18).

36    The Authority also accepted the appellant's claims that he was injured by a bombing, causing permanent injury. However, the Authority did not accept that he faces a real chance of any harm on account of these claims, as the incident occurred a long time ago and there was no indication that he was specifically targeted (para 19).

37    The Authority for similar reasons did not consider that the fact that the appellant was displaced in the 1990s due to conflict amounted to a real chance of any harm (para 20).

38    The Authority noted that the appellant departed the country illegally, and accepted on the basis of country information that it was possible that the appellant may be subject to monitoring for a period by the Sri Lankan authorities, and face social stigma as a returning failed asylum seeker. However, having regard to the facts that his wife worked as a primary school teacher, he has a house and he did not have financial problems, the Authority was not satisfied that his capacity to subsist would be threatened, nor that his treatment would constitute serious harm (paras 23-24).

39    The Authority also found that there was not a real chance of serious harm as a returning Tamil asylum seeker, even taking into account his religion (para 25). It relied upon the 2018 DFAT report that returnees who are detainees are not subject to mistreatment. It also accepted that he may be subject to questioning upon return, but said that the process itself, and the fact that he may be subject to a penalty under Sri Lankan law, would not constitute serious harm.

40    The Authority concluded:

31.    Considered cumulatively, I do not accept that the treatment the applicant may face upon return (including any official or societal discrimination, social stigma, monitoring, questioning, short term detention and the payment of a fine) amount to serious harm. Considering his profile on a cumulative basis (including his being a Tamil male from the north, his past interactions with the authorities, his political opinion, his religion, his being a failed Tamil asylum seeker and his illegal departure), I find that he does not face a real chance of serious harm.

41    Accordingly, the Authority found that the appellant does not meet the requirements of the definition of a refugee.

42    The Authority then considered Australia's complementary protection obligations, relying on the reasons already given to explain its finding that the appellant would not face a real chance of serious harm on account of his ethnicity, his religion, his illegal departure or for being a failed Tamil asylum seeker (para 36). Nor did it consider that the evidence indicated that there is a real risk that the appellant will be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment. The Authority was not satisfied the appellant faces a real risk of significant harm for any reason.

Before the Federal Circuit Court

43    The appellant raised 2 grounds of review before the Federal Circuit Court.

44    Ground 1A alleged that the Authority constructively failed to exercise its jurisdiction by failing to consider a claim or an integer relating to 'extortion, or demands for money or risk of ransom by the Sri Lankan CID on return to his particular village'.

45    I note that the words 'extort' or 'extortion' were not apparently utilised by the appellant in his claims, but the primary judge said that the Authority had accepted that the appellant had been 'extorted by the local CID', referring to the appellant's claim that he was interrogated by the CID about the work he was doing for the TULF, that the CID asked for money, and that they knew he owned land.

46    So, on that basis, the questions considered by the primary judge were:

(a)    whether the appellant advanced a separate and distinct claim that having come to the attention of the CID, he had been extorted because he had money and that he feared harm as a result, and the risk of such harm from the CID continued on any return to his village; and

(b)    whether the appellant's claim to fear harm such as ransom was inextricably linked to his claim that he would be of interest to and targeted by authorities as a result of his political involvement in Sri Lanka in TULF.

47    The primary judge considered that there was no separate claim advanced before the Authority, and to the extent an extortion claim was raised by the appellant as an integer of his claim to fear persecution, it was disposed of by the Authority in its general findings at para 14 of its reasons, reasoning that the TULF was a spent force and there was only a remote chance of the appellant suffering harm on account of his past and future political activities with the TULF should he return to Sri Lanka. The primary judge noted that the delegate also treated the extortion claim as an integer of the claim based on political involvement in the TULF.

48    Ground 2A alleged that the Authority's decision was vitiated by a constructive failure to exercise jurisdiction because of a misconstruction or misapplication of s 5J or s 36(2)(aa) of the Act, as the review was approached with an a priori (pre-conceived) attribution of status to the 2018 DFAT report. The primary judge accepted that there was no statutory footing for the Authority to attribute any a priori superior status to the 2018 DFAT report, but rejected the appellant's ground because:

(a)    it was premised on the incorrect contention that it was mandatory for the Authority to consider the 2018 DFAT report;

(b)    the choice, assessment and weight to be given to country information was a matter for the Authority and it was for the Authority to identify the evidence and material it found relevant and give that evidence and material the weight it considered appropriate;

(c)    the fact that the 2018 DFAT report was found to be authoritative did not suggest that there was any departure from a legitimate and reasonable choice of what material it would rely on; and

(d)    whilst the Authority gave substantial weight to the 2018 DFAT report it also considered the country information provided by the appellant and, after so doing, gave cogent reasons for the decision to give 'considerable weight' to the 2018 DFAT report.

49    Accordingly, the primary judge concluded that the appellant was unable to demonstrate that the Authority's decision was affected by any jurisdictional error.

Grounds of appeal before this Court

50    The appellant relies on two grounds of appeal, which in effect repeat the grounds raised before the primary judge. Ground 1 of the appeal is equivalent to ground 2A before the primary judge. Ground 2 is equivalent to ground 1A before the primary judge. The grounds before this Court are as follows:

Ground 1

The learned primary Judge erred in not finding that the decision of the Immigration Assessment Authority (IAA) was vitiated by a constructive failure to exercise jurisdiction because of a misconstruction or misapplication of section 5J of the Migration Act 1958 (Cth) ('well-founded fear of persecution') or paragraph 36(2)(aa) of the Act ('real risk').

Particulars

1.1    To insubstantiate the future risk to the appellant, the IAA relied exclusively on the latest iteration of DFAT's country information report for Sri Lanka [13]. It also received two articles of 'new information' in support of a sur place claim describing the appointment of Prime Minister Rajapaksa and generally-expressed fear of a return to human rights abuses under the former Rajapaksa presidency, and a 'coup' of state media by Rajapaksa-aligned forces.

1.2    The IAA actuated its discretion under section 473DD of the Act to receive the DFAT report by directing itself that the DFAT report was 'a highly authoritative source' [6]. In its substantive reasons, the IAA records that had 'given considerable weight to the latest report of DFAT as it is authoritative' [13].

1.3    The IAA to approach the fast track review with an impermissible a priori attribution of an exalted status to the DFAT report for which there is no statutory warrant, which made it practically determinative of the factual issues on review.

1.4    The IAA did not form the state of satisfaction contemplated by the Act because it failed to 'consider' the appellant's country information, or disabled itself from 'considering' it.

1.5    By purporting to dismiss the appellant's sur place claim on the basis that the country information was 'speculative' [12] or its (incorrect) finding that it did not 'report an actual worsening' [12] exposed a misunderstanding of the speculative task.

Ground 2

The learned primary Judge erred in not finding that the decision of the Immigration Assessment Authority (IAA) was vitiated by a constructive failure to exercise jurisdiction because of a failure to consider a claim or an integer thereof, or centrally important evidence, going to extortion, or demands for money or risk of ransom by the Sri Lankan CID on return to his particular village.

Particulars

2.1    The appellant claimed in writing in his protection visa application not just that the CID threatened and assaulted him because of his involvement with a political party, but also that they had extorted him [51]-[52]. The applicant stated that his fear were specific to the CID in his village [67];

2.2    At interview the appellant stated that the CID 'work as ca-hoots [sic] with the government for money' (T7 lines 47-50), and that, as a propertied Tamil, he may be the target of kidnapping for ransom (T20 line 31-36);

2.3    The IAA accepted all of the appellant's substantive historical claims [11] but insubstantiated the future risk, drawing upon DFAT country information, by finding that the situation for Tamils had improved generally in Sri Lanka and that the applicant's political party is not mentioned in the DFAT report. But the IAA did not confront, whether by rejecting it or not, the risk of more extortion by the CID in his village, nor the risk of ransom.

Ground 1

51    The Authority was entitled to receive the 2018 DFAT report under s 473DC of the Act. The Authority was entitled to get any document or information that was not before the Minister (here, the Minister's delegate) when the decision to refuse the grant of the visa was made, if the Authority considered it may be relevant. The Authority then had regard to s 473DD and assessed whether there were exceptional circumstances to justify considering the new information, as is revealed by para 6 of the reasons, extracted above.

52    However, the appellant submits that the Authority, having in the process of determining to accept the 2018 DFAT report for the purpose of the review, ascribed to it the status of 'highly authoritative', then adopted that status, with concomitant weight, without further analysis in its consideration of the appellant's claims.

53    The appellant contended that the Authority in attributing this pre-conceived 'superior status' to the 2018 DFAT report improperly 'fettered' or disabled itself from proceeding to conduct the review in the manner required of it.

54    A similar argument was raised by way of a notice of contention and dismissed by Besanko J in BOA18.

55    His Honour summarised the reasons of the Authority in that case relating to use of new information by way of the latest DFAT report in these terms:

[13]    Secondly, the second Authority noted that in making its decision, it had obtained and considered new information, namely, the latest Department of Foreign Affairs and Trade (DFAT) Report (DFAT Report) concerning Sri Lanka. The second Authority said that this DFAT Report was consistent with the one referred to by the delegate, but was significantly more recent and the second Authority described it as 'a highly authoritative source'. The second Authority said that the DFAT Report provided relevant information concerning the situation of Tamils, those with perceived or actual links to the LTTE, failed Tamil asylum seekers who departed illegally and people with mental health issues. The second Authority considered there were exceptional circumstances within s 473DD(a) of the Act which justified it considering this new information.

[14]    The second Authority also referred to the DFAT Report later in its reasons. In paragraphs 12 and 27, the second Authority made it clear that it had had regard to the country information reports identified in the referred materials. The second Authority made it clear that it gave 'substantial and greatest weight' and 'greatest weight' to the latest DFAT Report for the following reasons: (1) the DFAT Report is authoritative and more recent and based on the DFAT's on the ground knowledge and discussions with a range of sources as well as taking into account the relevant and credible open source reports, including those of the UNHCR, western governments and human rights organisations and Sri Lankan non-governmental organisations; and (2) the DFAT Report has been specifically prepared 'with regard to' the current case load for decision-makers in Australia.

56    The similarity in reasoning between the Authority in BOA18 and in the present case is readily apparent.

57    In BOA18 the notice of contention was relevantly in these terms:

2.    The learned primary Judge erred by not finding that that Sixth respondent's decision was vitiated by a constructive failure to exercise jurisdiction in that, by the Sixth Respondent directing itself at [sic] that the 'country information' [6] was 'highly authoritative' ([6]) and 'because it is authoritative … specifically prepared with regard to the current case-load for decision-makers in Australia' ([12]), exposed a misconstruction of the nature of the review under Part 7AA (ground 2 below).

Particulars

2.1    While the weight to be given to material is quintessential merits review, the fast track review miscarries if the reviewer comes to the review with a preconception that material produced by the Commonwealth is practically determinative or permits such permit to intrude upon the proper evaluation of material.

58    His Honour summarised the essential point raised by the respondents in BOA18 to be that the Authority treated the DFAT report as decisive without weighing all the relevant information and making its own decision as to the findings that should be made. His Honour rejected that argument, stating as follows:

[56]    The primary judge appears to have dealt with this argument by concluding that it would have been unreasonable for the second Authority not to have considered taking the most recently available DFAT Report into account (PJ at [115]). That is true, but as the respondents pointed out, that does not meet their point. They do not suggest that the DFAT Report should not have been taken into account. Rather, the respondents' submission is that the second Authority attributed a highly authoritative character to the DFAT Report because of its status and not because of its intrinsic merit.

[57]    I reject the respondents' argument. I do not consider that the second Authority improperly fettered its consideration of the country information. It is true that it considered the DFAT Report to be a highly authoritative source. It gave reasons for that conclusion and I have summarised those reasons. However, it did not ignore the other country information. It considered that information. The second Authority decided that the DFAT Report should be given 'substantial and greatest weight' or 'greatest weight' and, in my opinion, that was a decision it was entitled to reach.

59    I would also reject the appellant's argument in this case, and for similar reasons.

60    The Authority was obliged to assess whether the 2018 DFAT report may be relevant (s 473DC) and whether there were exceptional circumstances to consider it as part of its assessment under s 473DD.

61    It is therefore not surprising that it would consider the provenance of the 2018 DFAT report. However, in my view the mere description of the 2018 DFAT report as 'highly authoritative' in the reasons relating to s 473DD cannot fairly be considered a pre-conceived or pre-determined assessment of the weight to be afforded the 2018 DFAT report by the Authority for the purpose of its review, and the reasons, when analysed, do not support the appellant's submission.

62    The brief reasons relating to s 473DD do not suggest that the 2018 DFAT report was described as 'highly authoritative' only because it was authored by DFAT (that is, without any regard to the general nature of the report and the country to which it relates). Having regard to the provenance, date, title and general subject matter of the 2018 DFAT report, there is nothing to suggest that the description accorded the 2018 DFAT report was not one that was properly open to it. But in any event, by its reasons the Authority explained further the significance of the 2018 DFAT report in the exercise of its task and its content.

63    The Authority descended into considerable detail about the sources, content and findings of the 2018 DFAT report for the purpose of undertaking its task (and, as it happens, without repeating the description 'highly authoritative'). For example, in para 13 (extracted in full above), it said:

In making my findings, I have given considerable weight to the latest report of DFAT as it is authoritative, fairly recent and is based on DFAT's on-the-ground knowledge and discussions with a range of sources in Sri Lanka and it has taken into account relevant and credible open source reports and it has been prepared with regard to the current caseload for decision-makers in Australia.

64    Throughout its reasons the Authority also referred to relevant information from the 2018 DFAT report concerning: the situation in the north and east (from where the appellant comes); the level of ongoing monitoring and surveillance of Tamils in day-to-day life; the level of inclusion of Tamils in political dialogue; the absence of evidence that Tamils face different or unwarranted attention from authorities because of political involvement, the absence of mention of targeting of TULF members; the risk of social discrimination based on ethnicity; the comparison with the earlier 2015 DFAT report and the 2018 DFAT report as to criminal activity; and the challenges facing returnees to Sri Lanka. All such matters can be seen as relevant to the weight that the Authority might accord the 2018 DFAT report.

65    Further, it is apparent that the Authority did not rely only on the 2018 DFAT report but took it into account together with other country information. It considered the articles provided by the appellant, described them as 'important' and gave them 'some weight', providing reasons for doing so. It referred by comparison to the 2015 DFAT report. It took into account information from the 'Department of Elections, Sri Lanka' as to recognised political parties. It took into account the absence of any evidence before it that indicated that TULF members had been targeted in recent years.

66    This analysis highlights the difficulty with the appellant's argument that the Authority's undertaking of its task under Part 7AA was somehow fettered. To the contrary, it proceeded to assess the 2018 DFAT report in some detail and took into account other country information. The appellant did not suggest that it was inappropriate for the Authority to refer to the 2018 DFAT report. It is well understood that the weight to be given country information is a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

67    At this point it is necessary to say something about particular 1.5 to ground 1, and the contention that the primary judge erred in not finding that the Authority erred in its assessment of the articles upon which the appellant sought to rely. The relevant reasons of the Authority are at para 12, extracted in full above. In my view, it was not wrong for the Authority to find that those reports did not report on an actual worsening of the human rights situation for Tamils and political opponents. Whilst one report referred to an instance of a media outlet having been taken over, as the Minister submitted, that of itself does not demonstrate a worsening state of affairs for Tamils. However, of particular importance is the fact that although the Authority acknowledged the speculative nature of the concerns that were expressed, the Authority did not dismiss their relevance but expressly gave them some weight. Its treatment of those articles does not disclose error. Its reasoning does not disclose any failure to take into account the nature of the predictive exercise involved, as discussed in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391, 432; and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 571-573.

68    In conclusion, there is nothing to suggest that there was any departure by the Authority from a legitimate and reasonable choice as to the material it would rely upon. There is nothing to suggest there was any fetter operating on its decision-making processes. The Authority decided that the DFAT report should be given considerable weight and in my view that was a decision properly open to it.

69    No error in the primary judge's reasoning as to this ground of review has been established.

Ground 2

70    In summary the question is whether the Authority failed to consider a claim of central importance, or an integer of such claim, of extortion or demands for money or risk of ransom by the CID on the appellant's return to his particular village.

Principles

71    This is an allegation that the Authority failed to consider a substantial, clearly articulated argument in the sense often traced back to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.

72    The principles are collected in many authorities. Usefully, however, and in the context of Part 7AA, the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 said the following:

[18]    It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

… 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 [Migration] 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).

(Emphasis added.)

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on 'established facts' (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on 'established facts'. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must 'emerge clearly from the materials before the Tribunal and should arise from established facts'. I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been 'squarely raised' or 'clearly emerges' from the materials 'a court will be more willing to draw the line in favour of an unrepresented party': Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

73    See also Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J), where it is explained that there may be no clear distinction in this context between claims and evidence.

Matters relevant to whether claim (or integer of claim) emerged

74    Noting that it is appropriate to understand whether a claim has emerged having regard to how it has been presented over time, the following matters disclosed by the manner in which the claim was expressed, the evidence and delegate's reasons are said by one or both of the appellant and the Minister to be relevant.

75    I also note for completeness that there was some inconsistency in the evidence as to the name of the political party with which the appellant claimed to be associated. For example, it is recorded that at his Biodata entry interview the appellant referred to the 'TNA'. He later denied he was a member of the TNA and said that was a 'misinterpretation'. It was accepted by the delegate that where the appellant referred to the Thamilar Viduthalai Group or Thamilar Viduthalai Kootani (or the acronyms TVG or TVK), he was referring to the TULF, which could be taken to be the same entity. The Authority appears to have also proceeded on this basis, as did the parties before me.

Arrival interview

76    Upon arrival, the appellant said he was seeking protection from the CID because he was:

… interrogated and threatened, National ID Card taken. Worked for the TNA party during elections, that's why he was persecuted.

Entry interview

77    The record of entry interview includes the following:

Before I was working for the political party (Thamilar Viduthalai Group), and also I was working at the store when my boss was there. During the election time I was working for the party for the district election. Then one of my close relatives, he was asking for votes, to be elected. Because I was doing more work for the elections and the political party I had problems with the CID. They said not to contest against and not to work for the party, they told us to leave. Q. What would happened? They said if you continue to work here you will disappear and they threatened me. Q. When were you last threatened? 20/7/2012 behind Nalloor Temple the CID person called James came and stopped me on his motorbike, he took me to an old railway station, disused. He and 4 people they blindfolded me and started hitting me and said 'You should leave before the next election starts.' That was like the final warning, if they see me again they will kidnap me and take me away.

1 August 2013 statutory declaration

78    In the appellant's statutory declaration dated 1 August 2013, he stated:

4.    I fear returning to Sri Lanka because I believe that if I return to my country of origin I will suffer persecution, as defined in the United Nations Convention on the Refugee, due to my political opinion and ethnicity.

…

I supported and then worked for the Tamil Viduthalai Kuttani Party, an opposition party in the Tamil National Alliance. I started supporting the party as my boss Sinnalthamby Namasivayam was the president of the Jaffna branch. He was killed in 2001. As I became more aware of incidences and what was occurring to the Tamil people, I became more involved with the cause and started to work there full-time in or around January 2011. I put posters up for the party and worked in the office. One of my relatives was also involved in the party and ran for the Provincial Council Elections. The CID told me not to work for that party anymore and requested I work for the government party. The CID also threatened me and said that I would disappear if I continued to work for them. They made this threat four times.

One day on 20 July 2012, I was followed by two people on a motorbike. They overtook me and made me stop. It was the CID and one of them was called James. I knew him as he'd threatened me on a prior occasion. James forced me to get on their motorbike and I was taken to an unused railway station. They took me to the station. There were other people there. They kicked and beat me. They warned me not to work for the party, or they would make me disappear. This was the last warning, and they said they would put me in a white van and I'd be on the list of people who disappeared. In the Jaffna provincial council election, my party won all the seats. They told me not to work on the next election, which was the Northern provincial council election, which elects the Chief minister of the province. I believe that the CID decided to get rid of the supporters. Therefore, I thought there was no safety for my life if I stayed in Sri Lanka.

…

6.    The persecution I have suffered has been perpetrated by the agents of the government and is known to the government which is either unwilling or unable to prevent the persecution. I fear if I return to Sri Lanka that the CID will take me and kill me because of my political opinion and ethnicity. There will be no protection for my life. My wife is happy I am alive here. In Sri Lanka the CID and Army kill people and bury them in unknown places. There is no respect or value for life.

There is nowhere else safe for me to move to in Sri Lanka. Wherever I go the CID would be able to find me. If I go back, I am afraid they will kill me. They were angry with me for supporting my people with my work in the party. While I am alive, I always want to support the Tamil people.

…

8 September 2015 statutory declaration

79    In the appellant's statutory declaration dated 8 September 2015, he said:

2.    My main reasons for seeking the protection of Australia is fear of harm at the hands of the Criminal Investigation Department (CID) on account of my political views and ethnicity.

…

Political views

41.    I was harassed, threatened and beaten because of my involvement with the TVG.

…

48.    Because of the work I was doing for the TVG, I had problems with the CID. Three or more times I had threatening phone calls from the CID, saying that I should not participate in any more elections. A person called James who worked for the CID was responsible for trying to stop me.

49.    They said to me that I should not participate in any more elections, and not to work for the party and that I should leave. They said if you continue to work here you will disappear and they threatened me.

…

51.    I was interrogated by the CID about the work I was doing for the TVG. They asked me questions about the TVG and they also asked me for money.

52.    They knew I owned land and had a house, and they would ask for money. I was scared and I gave them some money.

…

55.    The last time I was threatened was on the 20th day of July 2012 at about 9.00 am, behind the street of Naloor Temple. A group of CID officers, including a person whose name is James, came on motorbikes and stopped me. I was on my motorbike, and they made me get off. There were four of them, but I could only identify James. I could see that they were CID officers because of the identification cards displayed on their shirts. They took my wallet from me and they did not give it back. It had my national ID card in it.

56.    The public could see this happening, but there was nothing anyone could do to stop it.

57.    They forced me to get onto one of their bikes. They took me to the old, abandoned Jaffna railway station.

58.    James and the other 3 CID officers blind-folded me and started hitting and kicking me. I was hit by wire and I had internal wounds.

59.    They said to me words to the effect of 'You should leave before the next election starts' and 'leave the TVG or we will put you in a white van and make you disappear'.

…

Ethnicity

…

67.    Since I have left, the Eelam People's Democratic Party are trying to make the Tamil people move from my village. They have demolished the community centre and the primary school and have threatened to kill all of the Tamil men. I heard about that from my wife. It was in the news as well. I am not safe to return to Sri Lanka.

68.    The war may have ended in Sri Lanka, but all of the Tamil areas are filled with the military. All we have in our areas since the war are soldiers. At the moment the government says that there is no war; that there is peace. But even though there is a new government, the CID is still in the Tamil areas, and they are in my village. My wife has told me this. It is also in the news.

…

Relocation

76.    I am unable to relocate to another area of Sri Lanka because my risk of harm extends throughout the whole country. Wherever I go in Sri Lanka the CID will be able to find me. The government is in control of the whole island, and the CID work for the government.

Summary of claim

77.    In summary, I fear harm including assault, kidnapping and murder at the hands of the Criminal Investigation Department of the Sri Lankan Police on the basis of my political views and my involvement in the Thamilar Viduthalai Group. I further fear harm in all areas of Sri Lanka at the hands of the CID by virtue of my political views. I have personally been threatened, beaten and interrogated by my feared persecutors. I cannot rely on the protection of the Sri Lankan Government and cannot safely relocate anywhere else in Sri Lanka.

Interview before the delegate on 20 November 2015

80    The following extracts from the transcript were referred to (O being the interviewing officer, A being the appellant):

O:    And you continued to work as a storekeeper up to the time you left for Australia.

A:    No. Not until I arrived in Australia. The owner was shot, and he was killed and the shop and the business was closed. Thereafter I worked for the party - the alliance.

While working for the party did I face the problems.

…

A:    I had political connection prior to my arrival in Australia.

O:    And have you any political affiliations now you're in Australia?

A:    No.

O:    Ok. So we'll go into your claims now. And whilst talking about political affiliations. Just in your statement of claims you put you supported the work for the Tamil Viduthalai Party. Now that is a Tamil United Liberation Front. So can you please tell me about why you left your home country in Sri Lanka.

A:    I was faced with a situation where I could not live there any longer because I was a Tamil. The army prohibited me from indulging into any political activities there and I'm also told not to carry out any activities, any related activities to the people in the area. That is the sole reason why I was kind of forced to leave the country. I have gone through a lot of difficulties and challenges. I've withstood all those problems but it came to a stage where I could not take it anymore. I had to leave … Even today the problems do exist … do exist … and I'm unable to live there because of the problems. My area is still under the army's control. …

81    The appellant was asked about the opponents of the political party, and said the main opponent was 'the government'. But he explained:

The government would not involve directly and act against us, but they do that through their agents such as the CID and others to oppose our activities … The problems faced by us with the government and the CID are still on going, not over, not done not done with yet.

82    Later in the interview the appellant recounted the incident on 20 July 2012. The exchange between the delegate and the appellant continued:

O:    In your statement of claims you've claimed that you suffered persecution due to your political opinion and ethnicity. Can you just tell me more about the events leading up to you departing Sri Lanka and the reason why you felt fear due to your political opinion?

A:    On 20th July 2012 I was at Nallur temple.

O:    Sorry can you say that again?

A:    … I was on my motorbike. One James who's a CID and 2 or 3 others blocked my bike and they ask me to sorry they took me on their bike. I could identify them. I refused to get on their bike. I was taken on their bike by force. I was then taken to a very quiet area which is called the Jaffna Old Station. I was beaten up at that place. I was taken at 9 am. I was in their custody till 1 pm. I was beaten up. We had at that time we did have significant support from the people and I'm not supposed to live in that area. I was told not to live in that area, and I was supposed to leave the country and I was also warned not to reveal about this incident of me being taken by them to anyone. And this is the last opportunity they are giving me. Should I indulge myself further on this sort of activities in future, the next step would be me being abducted in white van. So much of warning that was pushed to me …

O:    Ok, so when you were detained by …

A:    Prior to the 20th of July I was getting threatening phone calls. My wife, my wife's uncle had a house in Vanni. I went and lived in Vanni for about a month thinking that I would be safe. And the reason was, the reason for me living in that house was to avoid fleeing the country. Then my younger brother was interrogated.

Interrogated asking about my whereabouts. I was then called to meet up with these people. I received a call, a phone call from them in the presence of my brother and asking me to come up and meet with them. I then left Vanni and came to Jaffna. I then met up with them face to face and asked them what was the problem. My younger brother was released. And I was warned not to indulge in whatever I was doing, if it happens this is what they would do, and because of the warning…Sorry I was warned not indulging in these sorts of things, and then after the 20th … On the 20th I was taken into their custody and I was beaten up very badly and the 22nd I left my house …

O:    So just to go back, when you were being…when you were first picked up by the CID you said it was James. Did you know him at all previously?

A:    I know James because they used to come and take people into their custody during my political activities. I know him because he was actively taking or arresting people, detaining people in his custody. They work [in cahoots] with the government for money.

(emphasis added)

83    Later in the interview this exchange ensued:

O:    So why do you think you would remain of interest now that there has been a definite change in the political landscape in Sri Lanka and there is now a higher representation of Tamils in power including and they are addressing some of the issues you said your party also stood for? Why do you think you would still remain of interest to the government authorities?

A:    Yes the representation, a number of representatives has increased but our problems are still on going, are still there. We don't have freedom of speech. We don't have any freedom as such. There is a refugee camp still exists in my area. I'm from Jaffna and there is a refugee camp in Valigamo. There are still people, there are still people who are being detained or placed in the camp in Valigamo and their properties, be it the house or the land are all being occupied by the army at the moment. So there's no change as far as situation is concerned and if only we were allowed to occupy our own property our life style is restored, but it's not.

O:    So why do you think that you will specifically be targeted if you were to return to Sri Lanka?

A:    I am a victim in many ways. I lost my eyesight because of the war and I was also mentally affected because of these people. And I've come here, leaving everything behind just to save my life. Being alive at least I can meet my family sometime or somewhere.

O:    Do you have any other reasons for fear of returning to your home country Sri Lanka?

A:    I always have this fear of harm and the problems are still on going, it's not the end yet.

O:    So how do you know that you will be harmed if returned to Sri Lanka?

A:    Those people who tortured me, who took me to their custody still exist in Jaffna, in that area. The next issue is ransom. They kidnap people and kidnap people for ransom because I've got property, I've got house and my wife is a teacher and she also runs tuitions. I have all the income. I don't have any other financial problems such. My concern is I have to save my life.

O:    So do you have fears for the rest of your family in Sri Lanka?

A:    Because my wife is a public servant, she's a teacher in a government school on that basis she would not be harmed …

Delegate's reasons of 5 May 2016

84    In the reasons the delegate included a section headed 'Summary of protection claims'. The delegate summarised the appellant's claims made in the statutory declaration, including relevantly as follows:

23.    After receiving threatening phone calls he went and stayed for a month with his wife's aunt in May 2012. The CID took his brother and called him from his brother's phone. [They] told him to come at a particular time. He decided to go as he was worried about his brother. He was interrogated by the CID about the work he was doing for the TVG and then was asked for money.

85    The delegate summarised the appellant's responses during the interview relevantly as follows:

34.    … The applicant stated that his previous involvement in politics had given him a profile as he has been targeted in the past and the perpetrators still resided in the same area in Jaffna. The applicant stated although there had been a change in government with the election of Sirisena, the problems remained for Tamils who are denied their freedom. Kidnappings for ransom continue as do the land seizures by the government, with properties in the applicant's home area being forcefully occupied by the Sri Lankan army.

86    The delegate also referred to passages in the interview as follows:

142.    … At the Safe Haven Enterprise visa interview, the applicant stated, 'I am from Jaffna, Valikamam. There are still people being detained in the camp and their properties whether a house or land is being occupied by the army.' The applicant further clarified, 'I have a property, a house and my wife is a teacher. I have all the income that is required, I do not have any financial problems.' Given the finding in Part 2, I do not accept the applicant is an active member for the TULF, I therefore do not find that he would be targeted for politically motivated violence by the EPDP. Furthermore, I do not accept the applicant would meet the profile of harm on the basis of being an active member of the Sri Lankan civil society nor a human rights supporter. The applicant has not claimed nor is he presumed to be a sympathiser or ex-member of the LTTE.

87    As to the findings of fact, the delegate did not accept that the appellant was a member of the TULF, that he was threatened by the CID or that he was detained on 20 July 2012 on the basis of his work for the TULF political party. The delegate did not accept that the appellant was of adverse interest to the Sri Lankan authorities for the reasons of his political opinion, actual or imputed.

Consideration of those matters

88    As to the arrival interview, the information provided connected his fear of harm to his work for the political party.

89    As to the entry interview, the problem with the CID that the appellant identified arose directly out of his work with the party and work for the elections. When he recounted the incident with 'James' on 20 July 2012 his explanation linked the threat to his work for the elections and the next election.

90    As to his 1 August 2013 statutory declaration, the fear disclosed is said to relate to his political opinion and ethnicity. This description of the fear is repeated. Again there is a link relied upon between what were said to be repeated threats by the CID and his work for the party, the link perhaps made most explicit in his statement that the CID threatened him and said he would disappear if he continued to work for that party. That threat was said to have been made four times. When the appellant recounted the incident on 20 July 2012 he continued to repeat that the content of the warning from people from the CID (including James) was not to work for the party, or he would disappear.

91    Further, the threat described by the appellant is not limited to any return to his particular village but is put more broadly, that is, as a concern on his return to Sri Lanka.

92    As to the 8 September 2015 statutory declaration, the appellant describes his main reason for seeking protection as fearing harm at the hands of the CID on account of his political views and ethnicity. He repeats on a number of occasions his claim to the effect that he was threatened by the CID because of his work with the TVG. It is true that he gives evidence that they (the CID) asked him questions about the TVG and asked for money, that the CID knew he had property, that he was scared and gave them money. It should be noted that this evidence in his statutory declaration is included (at paras 51-52) under the heading 'Political views'. It is clear, in my view, from what is said in those paragraphs and those that precede it that such claim arises in the context of interrogation by the CID in connection with his political activities.

93    The appellant then proceeds to detail the 20 July 2012 incident and there is no mention of ransom or extortion in connection with it.

94    And then in his conclusion (at para 77 of the statutory declaration) the appellant says he fears harm including assault, kidnapping and murder at the hands of the CID on the basis of his political views and his involvement in the TVG, and that he fears harm in all areas of Sri Lanka at the hands of the CID by virtue of his political views. There is no reference to extortion or ransom. In my view, there is nothing in the statutory declaration that rises to a separate reference to or claim of fear of extortion, ransom or similar on the part of the CID arising from a basis other than the link to the appellant's political opinion and activities. To conclude otherwise would be to isolate the words that refer to demands for payment of money upon which the appellant relies from the context in which they are made. It would require a decision-maker to accord to them a context (such as wealth or access to money viewed separately from any political activities) that is by no means readily apparent from the drafting of the statutory declaration as a whole, or from the position in the statutory declaration where those words appear.

95    Further, the threat or fear described by the appellant is not said to be limited to a return to his village but is put more broadly, that is, as a concern on his return to Sri Lanka and 'in all areas of Sri Lanka'.

96    As to the transcript of the interview, the appellant referred to facing problems while he worked for the party, said he had political connections, and said that was the sole reason he had to leave the country. He recounted the 20 July 2012 incident, referring again to 'his activities' and stating that he was threatened that if he indulged further in those sorts of activities he would be abducted. He recounted that he knew James because 'during my political activities' the CID would come and take people into their custody.

97    The reference in the interview to the government not acting directly but using people like the CID is important, because it informs the appellant's evidence in the interview, set out above, that:

I know James because they used to come and take people into their custody during my political activities. I know him because he was actively taking or arresting people, detaining people in his custody. They work [in cahoots] with the government for money.

98    The reference to 'they' in the quoted extract is in context a reference to the CID. Counsel for the appellant emphasised the reference to money, asserting that it is a reference to extortion or demands for money. The particular evidence is in my view equivocal at most. It may be, as counsel for the Minister submitted, a reference to the fact that the CID is paid by the government. As already noted, the appellant did not suggest that the 20 July 2012 incident that included James involved a demand for payment of money or ransom. I note that the primary judge did not consider the statement related to extortion of the appellant: primary judgment at [37(e)].

99    As to the delegate's reasons, the appellant relied on para 23, and the fact that the delegate referred to the CID asking for money in the section of its reasons that set out the appellant's claims. It follows, it was said, that the claim was clearly made as the delegate referred to it.

100    In contrast, the Authority referred to that evidence (at para 11) but did not specifically refer to it when summarising the claims in para 7 of its reasons.

101    However, it is important to acknowledge that although the delegate refers to the request for money and ransom on the part of the CID, the delegate does not deal with it anywhere as a free-standing claim. The delegate confronted those matters as part of or as an integer of the claim based on the appellant's political profile. For example, the delegate expressly referred to the following passage from the interview:

Those people who tortured me, who took me to their custody still exist in Jaffna, in that area. The next issue is ransom. They kidnap people and kidnap people for ransom because I've got property, I've got house and my wife is a teacher and she also runs tuitions. I have all the income. I don't have any other financial problems such. My concern is I have to save my life.

102    This evidence forms the basis of para 142 of the delegate's reasons, where it is dealt with in the context of politically motivated violence.

103    Accordingly, although it can be said the delegate acknowledged the demand for money and ransom when considering the appellant's protection claim, the delegate's reasons do not support the appellant's contention that any separate extortion or ransom claim was understood by the delegate and emerged clearly from the delegate's reasons. The delegate addressed the integer on the basis that it was bundled up with the appellant's political profile and not otherwise.

104    It follows that reliance by the appellant on ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; (2021) 283 FCR 164 does not assist him. ESQ18 concerned a claim that was an unarticulated claim that clearly emerged from the materials and, importantly, had been clearly addressed by the delegate. That is not this case.

Determination

105    It is then necessary to draw those threads together in order to deal with the appellant's counsel's submission, clarified during the hearing, that the 'claim or an integer thereof … going to extortion' was said to emerge clearly from the material as an independent claim based on demands for payment, in addition to it arising as an integer of the claim based on political involvement.

106    I accept the Minister's submission that the primary judge was correct to find that no separate and distinct fear of extortion had been advanced or emerged and that any reference to ransom was inextricably linked to the claim relating to his political opinion. No separate claim was clearly advanced or emerged that the CID (in his village or otherwise) had threatened the appellant because it had an interest in him unconnected to his political profile, opinion and work. For the reasons I have given at [88]-[103] above, no such separate claim emerged from the evidence and materials, whether viewed separately or cumulatively.

107    I also accept that the primary judge was correct to conclude that to the extent the issue of money or extortion was raised, the Authority made findings that disposed of the claim. The Authority came to a different view to that of the delegate on some matters, an outcome that highlights that it undertook a review de novo. It accepted parts of the appellant's claims, but not all. The fact that the demand for money was not referred to in the Authority's summary of the appellant's claim does not mean that the particular aspect of part of the claim was overlooked (noting as an aside that the appellant did not include it in the summary of his own claim in the September 2015 statutory declaration). The evidence was referred to at para 11 of the Authority's reasons in the section that addressed claims of persecution, together with other evidence as to his treatment by the CID and his personal circumstances. In four detailed paragraphs, which include the reference to the appellant's payment of money to the CID, the Authority explained why it considered, even having regard to his 'past mistreatment and targeting by the CID', the chance that he will face any harm on account of his past and any future political activities with TULF to be remote and not real. The Authority referred to matters relevant to any current or future risk. It referred to the cessation of the appellant's political activities; the decline in the standing of the TULF as a target, with it having at the time only one remaining member; the passage of time since the appellant's involvement in TULF; and the cessation of visits to his wife to ascertain his whereabouts. The Authority said it had regard to the personal circumstances and country information.

108    Having specifically referred to it, there is no reasonable basis upon which it can be inferred that the Authority did not encompass the identified practice of the CID making demands for payment of money in its phrase 'past mistreatment and targeting by the CID', nor in its consideration of his personal circumstances. Nor is there a basis upon which it might be inferred that the 'past interactions with the authorities' referred to in the Authority's conclusion (at para 31) did not encompass such conduct.

109    That the Authority did not use the words 'extortion' or 'ransom' with particular reference to the CID does not mean that it overlooked or failed to address the appellant's claims insofar as demands for money or similar threats were integers of such claims (the Authority did refer to 'ransom' at para 15 with respect to Tamils generally). In circumstances where the Authority referred to the CID's demands for money and also referred to the appellant's claims to have been harassed and threatened and his fears of assault, kidnap and murder on the basis of his political opinions, no inference should be drawn that the Authority overlooked extortion and the risk of ransom demands simply because it did not use those words specifically: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ).

110    The manner in which the Authority conducted its assessment indicates that it understood its statutory task. I am not persuaded that there was any constructive failure to exercise jurisdiction as asserted by the appellant. It follows that I do not consider the primary judge was in error in coming to the conclusion his Honour reached.

Orders

111    It follows that error has not been demonstrated in the Federal Circuit Court's refusal of the application for review and the appeal should be dismissed. Counsel for the appellant indicated that he may wish to be heard as to costs. Accordingly, I will order that the appellant is to pay the first respondent's costs to be assessed by a registrar if not agreed, but that if the appellant seeks to vacate that order he may apply to do so within 14 days.

Associate:

Dated:    20 April 2022