Federal Court of Australia

ANA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 554

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to raise ground one of his amended notice of appeal filed on 4 November 2021.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia made on 23 July 2021 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made under Pt 7AA of the Migration Act 1958 (Cth) (Act) on 31 January 2017. The IAA had affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

2    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the IAA was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

3    By amended notice of appeal filed on 4 November 2021, the appellant advances two grounds of appeal in the following terms:

1.    The primary judge erred in failing to find that the IAA’s decision regarding the appellant was affected by jurisdictional error, as the appellant was a member of the same family unit as his father, in circumstances where the primary judge found that the decision in relation to the father was affected by jurisdictional error and ordered that that decision be quashed and remitted to the IAA.

2.    The primary judge erred in failing to find that the IAA failed to consider the appellant’s claim to fear harm when questioned on return to Sri Lanka due to his reporting of his kidnapping to police, and evidence given by the appellant to the International Truth and Justice Project (ITJP) identifying the police officer from the Criminal Investigation Department (CID) involved in the kidnapping.

4    For the reasons that follow, I consider that there is no error in the decision of the Federal Circuit Court and I dismiss the appeal.

Background

5    The background facts were set out in the reasons of the primary judge, from which the following summary has been drawn.

6    The appellant is a citizen of Sri Lanka. He arrived in Australia with his father on 26 August 2012 as an unauthorised maritime arrival and applied for the visa on 19 November 2015. When he arrived he was 22 years old. It becomes relevant to note that, at the time of his application for a SHEV, the appellant was 25 years old. By the time of the decision of the IAA, he was 26 years old. At each step of the immigration process, the applications of the appellant and his father were dealt with together. As explained by the primary judge, there is a degree of overlap between the claims for protection advanced by the appellant and his father.

7    On 31 August 2016, a delegate of the Minister refused to grant the appellant and his father protection visas.

8    On 6 September 2016, the delegate’s decision in respect of the appellant was referred to the IAA for review in accordance with s 473CA of the Act (and, on 13 September 2016, the decision of the delegate in respect of the appellant’s father was also referred to the IAA).

9    On 31 January 2017, the IAA affirmed the decisions not to grant the appellant and his father the protection visas.

10    By separate applications filed on 9 February 2017, each of the appellant and his father sought judicial review of the decision of the IAA by the Federal Circuit Court pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The appellant filed an amended application on 10 May 2021.

11    The primary judge heard both applications concurrently, given the overlap in factual and legal issues, but published separate reasons. The primary judge dismissed the appellant’s application. However, the primary judge allowed the father’s application and remitted the father’s visa application to the IAA for reconsideration: ANB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1656 (ANB17). In brief, the primary judge concluded that the IAA had failed to correctly perform the statutory task in accordance with s 473DD of the Act by failing to have regard to new information submitted by the father to the authority.

Appeal ground one

Appellant’s submissions

12    By his first ground of appeal, the appellant contends that it is a necessary consequence of the primary judge’s conclusion in ANB17 (that the IAA’s decision in respect of the appellant’s father was affected by jurisdictional error) that the IAA’s decision in respect of the appellant had to be quashed because he is a member of the same family unit as his father.

13    The appellant conceded that this issue was not raised before the primary judge, and no submission was made to the primary judge to that effect. It follows that the appellant is seeking to raise on appeal a ground for setting aside the IAA’s decision in respect of the appellant which was never raised before the primary judge. Leave is therefore required to raise the ground on appeal. In support of the grant of leave, counsel for the appellant submitted that there could be no prejudice to the Minister in granting leave because the point had been raised from the moment that the notice of appeal was filed. Both parties had addressed the point in their written submissions and both had the opportunity to address the point in oral submissions. Counsel for the appellant relied on CGA15 v Minister for Home Affairs (2019) 268 FCR 362 (CGA15) in this regard (see in particular at [38]).

14    The appellant submitted that he had claimed to be a “member of the same family unit” as his father within the meaning of the Act, which phrase included an adult child usually resident in the family head’s household and who is dependent on the family head (being wholly or substantially reliant on the family head for financial, psychological or physical support). The appellant argued that the claim was made in his SHEV application form by stating that there was a member of the same family unit – his father – who was in Australia but not included in that application form. Similarly, the appellant’s father had in his SHEV application form expressly named the appellant as a member of the same family unit present in Australia who was not included in the application form.

15    The appellant further submitted that he and his father were consistently treated by the Department of Immigration and Border Protection (Department) as members of the same family unit; they were interviewed together by the Minister’s delegate and the information provided by each was used in the assessment of the other’s claims. Similarly the IAA considered the reviews in tandem, producing separate but effectively simultaneous decision records.

16    The appellant submitted that, as he is a member of the same family unit as his father, the IAA was obliged to assess his application against the family unit criteria in subss 36(2)(b) and (c) of the Act, as well as subs 36(2)(a) (the refugee criterion) and subs 36(2)(aa) (the complementary protection criteria).

17    The appellant submitted that the fact that the subss 36(2)(b)-(c) criteria was not separately considered by the IAA is explicable in circumstances where the IAA simultaneously determined that neither the appellant nor his father satisfied the subss 36(2)(a)-(aa) criteria. However, the appellant submitted that the IAA’s ultimate conclusion affirming the decision not to grant the appellant a protection visa could not stand once the IAA’s decision regarding the appellant’s father was found to be affected by jurisdictional error and set aside. The appellant submitted that the IAA could not have reached a lawful state of satisfaction that the appellant was not entitled to a protection visa for non-satisfaction of the s 36 criteria until it had been lawfully satisfied that the appellant’s father did not satisfy the subss 36(2)(a) or (aa) criteria. The appellant submitted that since his father’s decision has to be remade, the appellant still has a live claim that has not been determined – namely whether he is the member of the same family unit as a person who satisfies the criteria for a protection visa.

Minister’s submissions

18    The Minister did not make submissions opposing the grant of leave for the appellant to raise ground one of the appeal. Counsel for the Minister acknowledged that the argument had been raised in writing in advance of the appeal hearing and had been the subject of written submissions. On this basis, counsel for the Minister indicated that he did not see a particular reason why leave to argue the point on appeal should not be given.

19    In respect of the ground itself, the Minister submitted that it is an essential premise to the appellant’s ground that the appellant had claimed to be a “member of the same family unit” as his father within the meaning of the Act, but no such claim was made and there was no evidence suggesting any such claim could be sustained.

20    The Minister submitted that, by operation of the definition of the phrase “member of the same family unit” in the Act, the appellant could only be a member of the family unit of his father if he was dependent on his father within the meaning of reg 1.05A(2) of the Migration Regulations 1994 (Cth) (Regulations).

21    The Minister submitted that there was no evidence adduced by the appellant, to the delegate or to the IAA, which would allow for a factual finding to have been made that the appellant was dependent on his father within the meaning of reg 1.05A(2) of the Regulations. No such finding was made by the delegate or the IAA. The Minister submitted that there is nothing in the record that would allow this Court, now, to make a finding that the appellant was dependant on his father in the necessary way.

22    The Minister submitted that it follows that there is no basis for the appellant now to claim that he is, for the purposes of the Act, a member of the same family unit as his father. The Minister submitted that the dearth of evidence to support the appellant’s claim is unsurprising, because the appellant and his father never made such a claim previously. No decision maker understood them to have made such a claim, hence the lack of any finding or decision to that effect. In particular, no submission was made to the primary judge that a finding of jurisdictional error in respect of the appellant or his father would require a similar finding of error or a consequential quashing order because they were members of the same family unit. The Minister submitted that, accordingly, there was no error on the part of the primary judge in not quashing the decision concerning the appellant at the same time as quashing the decision concerning his father.

Consideration

Leave to raise ground one

23    In considering whether to grant leave, the Court must bear in mind the importance to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 at 497. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, the Full Court observed the prevalence of this issue in migration matters, and summarised the general approach to be taken in considering whether to grant leave in that context (at [48]):

… The 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. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

24    In my view, this is not a strong case for the grant of leave (cf CGA15). First, and for reasons that will be elaborated on in the following section, the ground has little substantive merit. Second, the appellant did not provide any reason as to why this argument was not raised before the primary judge. In that regard, I note that the appellant was represented by counsel before the primary judge (albeit different counsel). In the absence of explanation, it would ordinarily be inferred that attention had in fact been given to the grounds available to be argued at first instance by those who were legally qualified to make that assessment: see Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [95], approving the reasoning of Charlesworth J in AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [26]-[27].

25    Nevertheless, the Minister accepted that there was minimal prejudice to the Minister should leave be granted and the Minister did not actively oppose the grant of leave. In that circumstance, and principally by reason of that circumstance, I grant leave to the appellant to raise ground one.

Substantive ground of appeal

26    Section 36(2) stipulates certain criteria for the grant of a protection visa and is in the following terms (emphasis added):

(2)     A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)     is mentioned in paragraph (a); and

(ii)     holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)     is mentioned in paragraph (aa); and

(ii)     holds a protection visa of the same class as that applied for by the applicant.

27    Thus, a basis for applying for a protection visa is that the applicant is a member of the same family unit as a person who is entitled to a protection visa as a refugee (under s 36(2)(a)) or by reference to the complementary protection criteria (under s 36(2)(aa)).

28    The phrase “member of the same family unit” is defined in s 5 of the Act as follows (emphasis added):

one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

29    The phrase “member of the family unit” is defined in s 5 of the Act by reference to the Regulations. Importantly, that definition differs from the way in which the phrase “member of the family unit” might be understood in ordinary parlance.

30    Regulation 1.12(4) provides the relevant definition for a SHEV (see reg 1.12(3)). It provides as follows (emphasis added):

(4)     A person is a member of the family unit of another person (the family head) if the person is:

(a)     a spouse or de facto partner of the family head;

(b)     a dependent child of:

(i)     the family head; or

(ii)     a spouse or de facto partner of the family head; or

(c)     a dependent child of a dependent child of:

(i)     the family head; or

(ii)     a spouse or de facto partner of the family head; or

(d)     a relative, of the family head or of a spouse or de facto partner of the family head, who:

(i)     does not have a spouse or de facto partner; and

(ii)     is usually resident in the family head’s household; and

(iii)     is dependent on the family head.

31    The phrase “dependent child” is defined in reg 1.03 of the Regulations, in respect of a person as:

the child or step‑child of the person (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner), being a child or step‑child who:

(a)     has not turned 18; or

(b)     has turned 18 and:

(i)     is dependent on that person; or

(ii)     is incapacitated for work due to the total or partial loss of the child’s or step‑child’s bodily or mental functions.

32    The word “dependent” is defined in reg 1.05A of the Regulations. Sub-regulation 1.05A(2) is applicable to protection visas (which includes a SHEV – see ss 35A(1) and (3A) of the Act) and stipulates that a person (the first person) is dependent on another person if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

33    It follows that the appellant (being an adult) could only be a member of his father’s “family unit” for the purpose of subss 36(2)(b) and (c) of the Act if he is dependent on his father in the sense that he is wholly or substantially reliant on his father for financial, psychological or physical support. I note for completeness that the appellant could also be a dependent child if he was incapacitated in the manner specified in reg 1.03(b)(ii), but the appellant did not rely on that paragraph.

34    The relevant question to be determined by this Court, however, is not whether the appellant satisfies this definition and therefore could have succeeded in claiming that he is a member of the same family unit as his father. Rather, the question is whether the material before the delegate, and subsequently the IAA, in fact contained such a claim such that the primary judge erred in not recognising the claim when dismissing the appellant’s application for review.

35    The appellant relies on page 5 of his SHEV application form dated 6 November 2015, where he ticked “yes” in response to the question “Are there any members of the same family unit who are IN AUSTRALIA but are NOT included in this application?” (emphasis and capitals in original). In the details section below this tick, the appellant set out the name of his father. In a box in the same section titled “Relationship to applicant 1”, the appellant wrote “father”, and under the prompt “[r]eason for not including [the family unit member] in this application” the appellant wrote “I am making own application as I am 25 years old”.

36    Similarly, in his SHEV application form, the appellant’s father listed the appellant as being a “member[] of the same family unit NOT included in this application”. In response to the prompt “[r]eason for not including in this application”, the appellant’s father wrote “[m]aking own application as 25 years old”.

37    I do not consider that by ticking the “same family unit” box in his SHEV application, the appellant (or the appellant’s father) made a claim that the appellant’s application should be considered on the basis that he is a member of the same family unit as his father, with the result that his application should be assessed against the family unit criteria in subss 36(2)(b) and (c) of the Act, as well as subss 36(2)(a) and (aa). A number of matters support this conclusion.

38    First, the SHEV application form does not contain a definition of the expression “members of the same family unit”. The ordinary meaning of the phrase would encompass a father and son regardless of their age or position of dependency. It is understandable that an applicant would answer that question in the affirmative by reference to the ordinary meaning of the phrase. That is so notwithstanding that the appellant appears to have received assistance in completing the application form from a migration agent (who also acted as an interpreter in respect of the completion of the form). Further, the appellant’s express statement in the SHEV application form that “I am making my own application as I am 25 years old” (and his father’s corresponding statement) conveys that the appellant considered himself to be independent of his father, and intended to make his own application based on his own claims for protection. This is contrary to the necessary dependence on a family member which would be the central consideration in any “same family unit” claim made by the appellant, as set out above. I consider that the most likely explanation for the appellant ticking the relevant box is that he did not understand the technical legal meaning of the phrase “member of the same family unit” for the purpose of the Act, and ticked the box to indicate that he had another family member in Australia who was making a separate application for protection.

39    Second, nowhere in the appellant’s statutory declaration accompanying his application for a SHEV did the appellant claim to be owed protection as a member of the same family unit as his father. The appellant’s claims for protection necessarily overlap and intersect with his father’s claims because they arise out of largely the same factual circumstances. However, at no point in the supporting statutory declaration did the appellant indicate, in express or implied terms, a claim that his application should be considered on the basis that he was part of the same family unit as his father, or indeed that he is in any sense dependent on his father.

40    Third, contrary to the appellant’s submissions, there is nothing to suggest that the delegate treated the appellant and his father as making claims on the basis of being members of the same family unit. That the appellant and his father were interviewed at the same time (one after the other) and that each of their evidence was used in the assessment of the other’s application is reflective only of the mutual subject-matter of their claims. As much was acknowledged by the delegate during the interview when she said:

… you have submitted separate applications. However, you have individual claims, which are interconnected. Therefore, I will interview you separately. In the course of the interview, I may have to cross-check the claims with each one of you. Do you have any objection to that?

41    The delegate subsequently asked the appellant to leave the room while she interviewed the appellant’s father, following which the appellant was invited into the room for his interview. After both had been interviewed, their migration agent made combined submissions in support of their respective applications. At no point during his interview with the delegate did the appellant make any claim on the basis that he is a member of the same family unit as his father. At the end of his interview, the appellant was asked whether he had put forward all of his claims for protection, to which he replied “yes”. Nor did the submissions made by the appellant’s representative at the end of the interview make any such claim.

42    Fourth, the appellant’s written submissions to the delegate post-interview reinforce the conclusion that the appellant and his father intended to make independent applications, although it was convenient to make joint submissions in respect of those applications given their mutual factual basis. In the post-interview submissions, the appellant’s migration agent noted as follows:

We note that while the applicants, who are father and son, have separate applications, they were interviewed immediately in succession of one another. We note that their cases and claims are intertwined and that given this, you agreed to one oral submission being made at the conclusion of the interviews for both applicants.

…

… We respectfully submit that it is open to you, when considering our clients’ claims both separately and cumulatively as you are required to do so, to find that our clients are refugees and that their fears of persecution on returning to Sri Lanka for a Convention reason/s are well founded.

43    Finally, the decision of the delegate in respect of the appellant found that the appellant was:

… not a person in respect of whom Australia has protection obligations as outlined in paragraphs 36(2)(a) or (aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant

44    In my view, the delegate’s finding reflects the delegate’s understanding that the appellant had not claimed to be a member of the same family unit as any other person. If the delegate’s understanding was incorrect, it could be expected that this would have been addressed by the appellant’s lawyers when they made submissions to the IAA. Before the IAA, however, no submission was made that the appellant was a member of the same family unit as his father. For this reason, no finding was made on the point by the IAA. Further, no allegation of jurisdictional error in this respect was made in the application for review to the primary judge.

45    I note for completeness that the Minister sought to rely on material in an earlier invalid protection visa application dated 13 August 2013. In that application, the appellant answered “no” to the question of whether there were any members of the same family unit in Australia but not included in his application. In my view, the contents of that application have no bearing on whether the appellant, in his later (valid) application for a SHEV, made a claim to be owed protection as a member of the same family unit as his father.

46    For the reasons set out above, I consider that the appellant did not make a claim that he was a member of the same family unit as his father within the meaning of the Act. It follows that the primary judge did not err in failing to set aside the IAA’s decision in respect of the appellant as a consequence of setting aside the IAA’s decision in respect of the appellant’s father. I therefore dismiss appeal ground one.

Appeal ground two

47    By his second ground of appeal, the appellant contends that the primary judge erred in failing to find that the IAA failed to consider the appellant’s claim to fear harm when questioned on return to Sri Lanka due to his reporting of his kidnapping to police, and evidence given by the appellant to the International Truth and Justice Project (ITJP) identifying a police officer from the Criminal Investigation Department (CID) involved in the kidnapping.

Reasons for decision of the IAA

48    The IAA summarised the appellant’s claims for protection at paras [1] and [9] of its reasons, as follows:

1.     The referred applicant (the applicant) claims to be a Tamil of the Hindu faith from Batticaloa District, Eastern Province, Sri Lanka. He arrived in Australia on 26 August 2012 and lodged an application for a Safe Haven Enterprise visa (SHEV) (XE-790) on 19 November 2015. On 31 August 2016 a delegate of the Minister for Immigration and Border Protection (the delegate) refused the visa.

…

9.     The applicant's claims can be summarised as follows:

•    He fears serious harm on return to Sri Lankan because of:

•    his Tamil race;

•    his real or imputed political opinion of being opposed to the Sri Lankan Government and/or being suspected of being a Liberation Tigers of Tamil Eelam (LTTE) supporter or sympathiser for the combined reasons of his Tamil race; being from a former LTTE controlled area; his father's detention, mistreatment and imprisonment on the grounds of being suspected of assisting the LTTE in 1997; his evidence to the International Truth and Justice Project (ITJP) about his abduction by the Karuna Group including a Sinhalese member of the security forces; and being returned as a failed asylum seeker who left Sri Lanka illegally;

•    his being a member of a particular social group, namely being perceived as wealthy or a wealthy jeweller; and

•    his being a Tamil failed asylum seeker from the Eastern Province of Sri Lanka.

49    At [24]-[26] of its decision record, the IAA accepted the appellant’s factual claims that he had been kidnapped in April 2012 by the Karuna Group, as follows:

24.    I accept that on the morning of 14 April 2012 he visited a temple in Colombo and when he was leaving he was kidnapped by the Karuna Group; he was kept in a single room, tied to a chair for most of his captivity, his captors were S and B and he was beaten and cut at various times, usually by S; he was held for six days before a demand for a ransom of 25 lakhs was made by his kidnappers in a telephone call to his father; in a subsequent call his father negotiated to pay 15 lakhs for his release with the other 10 lakhs to be paid in two to three months; six or seven days after the first phone call to his father he was released at a lodge in Colombo after his father paid the money; that he and his father immediately returned home to Batticaloa, stopping at Batticaloa hospital for a few hours to obtain treatment for the applicant in the form of pain killers, medication and dressings; and that it was three weeks or so before the applicant was fully recovered from his treatment during the kidnapping.

25.    I accept that the applicant returned to Colombo two days after his release to report his abduction to the police station near the temple he was abducted from; that the police promised to contact him in two days but he never heard from the police; that three weeks after his release he identified B as a CID officer after an article appeared in a Sinhala newspaper and a similar article appeared in a Tamil newspaper later on 2 June 2012; that about a month after he saw the article in the Sinhala newspaper he attended the ITJP enquiry in Colombo with his father’s friend K, who was to give evidence about the disappearance of his own brother, and the applicant gave evidence about his abduction in April 2012 and a copy of the Sinhala newspaper article about B; he received a copy of the ITJP’s report on the enquiry in the post; and he did not tell his father about giving evidence to the ITJP until after they arrived in Australia.

26.    I accept that a few days after he got back from the ITJP enquiry some men from the Karuna Group came to his family home and threatened his father about the outstanding ransom money; that Karuna Group men harassed and threatened his father about the money both over the phone and in person; that his father told the Karuna Group men that he needed more time; that because they were afraid of the Karuna Group he and his father fled Sri Lanka on 7 August 2012; that after he and his father left Sri Lanka his mother and siblings stayed at night at relatives’ houses for a year or so; and that a month or so after they left Sri Lanka, neighbours told his mother that Karuna Group men visited his family’s house and killed their dog while yelling out that they would kill them if they didn’t pay and those men came back looking for them a few times.

50    At [28] of its decision record, the IAA went on to find that:

The applicant has not claimed that the Sri Lankan authorities have ever questioned, arrested or detained him for any reason, including his father’s imprisonment in 1997, or made any enquiries about him or his father after they left Sri Lanka for Australia. In the absence of any evidence to the contrary, I accept that the applicant has never been questioned, arrested or detained by the Sri Lankan authorities and that there have been no enquiries by the Sri Lankan authorities about the applicant or his father since they left Sri Lanka in August 2012. Similarly, in the absence of any evidence to the contrary, I accept that the Karuna Group has not attempted to contact the applicant’s family in Sri Lanka, other than those incidents reported by his neighbours to his mother in the period shortly after they fled Sri Lanka, after they left Sri Lanka in August 2012.

51    While the IAA accepted the appellant’s evidence of his mistreatment related to the kidnapping, the IAA found that the appellant would not face a real chance of serious harm on that basis if he returned to Sri Lanka. In this regard, the IAA stated at [43]:

… Fifthly, although B, a CID officer, was one of his captors in his April 2012 kidnapping, I am satisfied that the kidnapping was for the purpose of obtaining a ransom, as the applicant was only questioned about his father’s phone number by S and B, and not asked about LTTE connections or anything else during his 12 to 13 days of captivity. Sixthly, the Sri Lankan authorities have not approached the applicant’s family about his or his father’s whereabouts or otherwise enquired after the applicant or his father since they left Sri Lanka in August 2012. I am not satisfied that the former Sri Lankan authorities would have had any adverse interest in the applicant, or his father, if he had remained in Sri Lanka or that he, or his father, would be of any adverse interest to the current Sri Lankan authorities on return. …

52    In respect of the applicant’s evidence to the ITJP, the IAA made the following findings at [52]-[53] of its reasons (emphasis added):

52.    I accept that the applicant, together with his father’s friend K, attended an ITJP enquiry in Colombo in approximately May 2012. The applicant gave evidence about his kidnapping by the Karuna Group, including the involvement of B, who he identified as a CID officer because of the Sinhala newspaper article that he also gave to the ITJP. I also accept that the ITJP is an international human rights organisation. However, the applicant has not claimed that he or any of his family received any adverse attention from the Karuna Group, B, the Sri Lankan authorities or anyone else because he gave evidence to the ITJP enquiry. Similarly, there is no evidence to suggest that K received any adverse attention from the Sri Lankan authorities or anyone else because of K’s involvement with the ITJP enquiry.

53.     Given this, together with the passage of time since he gave his evidence to the ITJP, I am not satisfied there is be a real chance that the applicant would face harm, because he gave evidence to the ITJP enquiry, including his identifying B, if he returned to Sri Lanka, now or in the reasonably foreseeable future.

53    At [58]-[73], under the heading “Failed asylum seeker and illegal departure from Sri Lanka”, the IAA accepted that the appellant would be detained and questioned at the airport because he had departed Sri Lanka illegally, but found that he would not face a real chance of persecution on that basis. To the extent that the appellant’s kidnapping was considered as a risk factor in that analysis, it was dismissed because the IAA found that the appellant had not been of any interest to the authorities at the time he left Sri Lanka and that they had shown no interest in him since he departed Sri Lanka. In this regard, it is convenient to extract the relevant part of the IAA’s reasoning at [65] of its decision record:

However, as discussed above, notwithstanding his father’s imprisonment as a suspected LTTE sympathiser or supporter in 1997 and 1998, his and his family’s former residence in a LTTE controlled area, and B’s involvement in his kidnapping, the applicant was not of any interest to the former Sri Lanka authorities at the time he left Sri Lanka and the authorities have shown no interest in him since he departed Sri Lanka. Taking into account those findings and the country information, I do not accept that the applicant will be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka.

54    The IAA further observed (at [71]):

… whether considered separately, together or cumulatively with a brief period of detention, I do not consider any likely questioning of the applicant by the DoIE, SIS or CID at the airport on arrival, any surety imposed, or the imposition of a fine under the IE Act, to constitute a threat to his life or liberty, or to be significant physical harassment or ill treatment under s.5J(5) of the Act or otherwise amount to serious harm.

Findings of the primary judge

55    The appellant’s second ground of appeal effectively replicates the appellant’s first ground of review in the proceeding before the primary judge.

56    The primary judge summarised the materials relied on by the appellant and the reasons of the IAA. In respect of the appellant’s contention that the IAA had, at [28], mischaracterised the appellant’s claim, the primary judge concluded (at [44]) that:

When the entirety of the reasons of the Authority are considered in context, I am satisfied that the Authority has not mischaracterised the Applicant’s claims and did not overlook the fact that a CID officer was involved in the kidnapping of the Applicant. …

57    In respect of the appellant’s contention that the IAA failed to consider his claim to fear harm on return to Sri Lanka when questioned (due to the reporting of his kidnapping to police and the evidence he gave to the ITJP), the primary judge concluded that (at [55]):

… the risk attendant to that matter had already been considered by the Tribunal, which had concluded that the Applicant's reporting of his kidnapping to the police, and his evidence to the ITJP identifying the CID officer involved in the kidnapping, did not lead to the Applicant possessing an adverse profile that would bring him to the attention of the Sri Lankan authorities.

Appellant’s submissions

58    For his second ground of appeal, the appellant relied on the factual claims accepted by the IAA at [24]-[26] of its decision record (extracted above).

59    The appellant submitted that the IAA erred by failing to consider a claim that was clearly made by the appellant, namely that he would be at risk of harm from the CID, over and above the risk faced by other returnees who had departed illegally, because when the CID interrogated him in connection with his illegal departure, it would inevitably come out that the appellant had informed on a member of the CID, and he would be mistreated by the CID as a result.

60    The appellant submitted that the fact that he was not of interest to the authorities at the time of his departure and that they had not shown any interest in him up until the IAA’s decision could not be a basis for dismissing that claim, because it was only upon the interrogation for illegal departure, once the appellant arrived back in Sri Lanka, that the interest of the CID in the appellant would be triggered.

61    The appellant submitted that the primary judge erred in finding that the IAA was relieved of the obligation to consider this claim separately on the basis of its previous findings at [43] and [53] of its decision record.

Minister’s submissions

62    The Minister accepted that in both the interview with the delegate and in written submissions to the Department, the appellant made a claim in the following terms:

(a)    the appellant had departed Sri Lanka illegally and would be questioned on his arrival in Sri Lanka as part of the general or standard approach of the authorities to illegal departees; and

(b)    during the course of that questioning, the appellant would be forced to reveal that he had given evidence to the ITJP inquiry, which would lead to additional beating or violence.

63    The Minister submitted, however, that there was no error in the IAA’s decision because it dealt with this claim. It did so by accepting proposition (a) above, but not proposition (b). The IAA did not accept that the appellant would be subject to the kind of questioning that might lead to the outcome feared by the appellant. Nor did it accept that he would be at risk of harm arising from that questioning.

64    The Minister submitted that it was an important factual premise to the appellant’s claim that the appellant would be questioned in such a way that he would be made to “say everything” – that the authorities would “dig out” the information. The Minister submitted that when considered as a whole, and read fairly, the IAA findings about profile and risk amounted to a lack of satisfaction with the factual premise to the appellant’s claim.

65    First, the IAA was not satisfied that the appellant would be subjected to the kind of questioning that would require him to “say everything” or that the information about the ITJP would be “dug out”. There was nothing in his profile to give rise to questioning of that kind.

66    Second, the IAA was not satisfied that the kind of harm the appellant described, even if extensive questioning ensued, was likely to occur. That is, there was nothing in the appellant’s profile – including that he gave evidence to the ITJP – that had led to adverse attention from authorities previously, and there was no reason to think such attention would occur on his return, including after questioning.

67    The Minister submitted that these findings by the IAA were sufficient to deal with the claim in respect of the questioning that the appellant claimed to fear. The IAA’s findings about profile and risk covered this issue, along with the more general risk of scrutiny from authorities on return.

68    The Minister submitted that the primary judge understood this and correctly upheld the IAA’s decision. The primary judge correctly found that the IAA’s findings about profile and risk of harm extended to the questioning the appellant might face on return. That the appellant had not faced harm nor accumulated an adverse profile previously, despite his evidence to the ITJP, spoke also to the risk arising from questioning. The IAA had therefore considered the claim, raised by the appellant, that questioning would lead to harm.

Consideration

69    Read fairly, the IAA’s reasons show that it addressed the claim made by the appellant that is the subject of ground two; namely, that the appellant fears harm upon returning to Sri Lanka on the basis that he would be questioned by the authorities and during that questioning it would emerge that he had given evidence to the ITJP inquiry, identifying the CID police officer involved in his kidnapping.

70    In my view, the IAA’s reasons show that it understood and addressed the appellant’s claim, but did not accept that the appellant would be forced to reveal that he had given evidence regarding the CID police officer to the ITJP inquiry. Nor did it accept that the appellant would be at risk of the kind of harm that he had submitted would result from this information being uncovered.

71    As the primary judge observed (at [44]), it is apparent from the IAA’s reasons, read in context and as a whole, that it understood that a CID officer had been involved in the appellant’s kidnapping – see in particular paras [25], [28] and [43] of the decision record, extracted earlier in this judgment.

72    The IAA also observed that the appellant had not claimed that the Sri Lankan authorities had questioned, arrested or detained him or anyone in his family. Nor had they made any enquiries about him or his father since they left Sri Lanka for Australia (at [28]). On this basis, the IAA did not accept that the appellant would receive any adverse attention from the Sri Lankan authorities upon his return (at [43]).

73    In respect of the ITJP aspect of the appellant’s claims, the IAA accepted that the appellant gave evidence about his kidnapping by the Karuna Group, including the identification of B, who he identified as a CID officer. The IAA further considered, however, that the appellant had not claimed that he or any of his family received any adverse attention from the Karuna Group, B, the Sri Lankan authorities or anyone else because he had given evidence to the ITJP inquiry (at [52]). On this basis, and taking into account the passage of time since the appellant gave his evidence to the ITJP, the IAA concluded that it was not satisfied that there was a real chance the applicant would face harm because he gave evidence to the ITJP inquiry, including by identifying B (at [53]).

74    Taking into account the findings canvassed above, the IAA went on to find (at [65] of the decision record) that it did not accept that the appellant would be “at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka” (emphasis added), for reasons including “B’s involvement in his kidnapping”. The IAA further concluded, at [71], that it did not consider that “any likely questioning” of the appellant at the airport would constitute a threat to his life or liberty, or would be significant physical harassment or ill treatment, or otherwise amount to serious harm.

75    It is apparent from these observations in the IAA’s decision record that it considered:

(a)    that a CID officer had been involved in the appellant’s kidnapping;

(b)    that the appellant had given evidence as to the CID officer’s identity to the ITJP inquiry;

(c)    whether the appellant would face harm from the authorities on the basis that he had given evidence to the ITJP inquiry, ultimately concluding that he would not;

(d)    whether the appellant would be at risk of adverse attention from the Sri Lankan authorities (for reasons including B’s involvement in his kidnapping) when scrutinised upon arrival in Sri Lanka, again ultimately concluding that he would not be; and

(e)    that “any likely questioning” would not give rise to the requisite level of harm to enliven protection obligations.

76    There is nothing in the reasons to suggest that the IAA did not understand or did not address the appellant’s claim to fear harm on the basis that his giving evidence to the ITJP regarding the CID officer would come out in the course of routine interrogation by the CID upon his return to Sri Lanka. It is apparent from the IAA’s reasons that it had in contemplation the very claim made by the appellant and, in substance, considered and reached a conclusion in respect of it.

77    For those reasons, appeal ground two must be rejected.

Conclusion

78    It follows that the appeal should be dismissed with costs.

Associate:

Dated:    17 May 2022