Federal Court of Australia

AAM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1170

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

GOODMAN J

introduction

1    The appellant is a citizen of Sri Lanka who arrived in Australia on 3 October 2012 as an unauthorised maritime arrival. On 16 January 2017, the appellant applied for a Temporary Protection (Class XD) (subclass 785) visa.

2    On 2 May 2017, a delegate of the Minister made a decision, under s 65 of the Migration Act 1958 (Cth), to refuse to grant the appellant the visa. On 3 May 2017, that decision was referred to the Immigration Assessment Authority for review. On 12 December 2017, the Authority affirmed the delegate’s decision and provided its Reasons for doing so.

3    On 3 January 2018, the appellant lodged an application for judicial review with the (then) Federal Circuit Court of Australia. On 28 January 2020, the primary judge heard that application (as amended on 2 July 2019) and dismissed it: AAM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Services [2020] FCCA 312 (J).

4    The appellant appeals from the decision of the primary judge.

Authority’s Decision

5    The Authority was required by s 473CC of the Act to review the decision of the Minister to refuse to grant the visa sought by the appellant and to affirm that decision or remit it for further consideration. Part of that decision (and thus part of the review) was whether the criteria for the grant of a protection visa under s 36 of the Act had been satisfied and in particular s 36(2)(a) and (aa) which provided:

36    Protection visas – criteria provided for by this Act

…

(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…

6    In undertaking that task, the Authority had regard to the information referred to it by the Secretary pursuant to s 473CB of the Act (Reasons [3]). It also had regard to a statutory declaration and submissions provided by the appellant (Reasons [4]).

7    The Authority commenced its consideration by setting out the appellant’s claims for protection (Reasons [7]). The essence of those claims is as follows:

(1)    the appellant is from the Eastern province of Sri Lanka, which was a former stronghold of the Liberation Tigers of Tamil Eelam (LTTE). Several members of his extended family have been killed or abducted and presumed killed by the authorities on the account of being, or suspected of being, associated with the LTTE. The appellant’s uncle, KS, provided the LTTE with food and transportation but was killed in 1997 at which time the Sri Lankan authorities refused to release his body or provide a death certificate and labelled the appellant’s family as an “LTTE family”;

(2)    in 2005, the appellant left school and provided food and transportation to the LTTE. The appellant was known by a name that associated him with the LTTE and described him as an enemy of the Sri Lankan government and the Sinhala people. He and his father were detained several times by the Sri Lankan Army (SLA), tortured, and interrogated about their support of the LTTE. The appellant was released because of an assurance by his school principal that he was not associated with the LTTE. On his release he was told that if he was an LTTE supporter he would be killed as KS had been;

(3)    in 2007, the appellant was abducted and detained for five days by what he suspected to be the Karuna Group working with the SLA. He was tortured and held without food but refused to undergo weapons training. He was then released;

(4)    from about 2008, the appellant and his family began actively supporting the Tamil National Alliance (TNA) political party in promoting propaganda and assisting in their election campaigns (in 2008 and 2012);

(5)    between 2008 and 2010, the appellant worked as a bus conductor. During that period, he was harassed and accused of supporting the LTTE by the Karuna and Pillayan militia groups and the security forces, both at work and whilst commuting to and from work;

(6)    in March 2010, when the appellant was on a motorcycle with a friend, they were shot at by pro-government militia. The friend died and the appellant was thrown off the motorcycle and injured;

(7)    in September 2011, the day after a TNA politician attended his sister’s wedding, the appellant was abducted by the authorities and threatened that his family would be killed if they continued to support the TNA or LTTE. After this, the appellant went into hiding;

(8)    in August 2012, the appellant’s house was attacked, he suspects by the Pillayan militia group, as the Sri Lankan authorities suspect that all TNA supporters are associated with the LTTE;

(9)    further, at an unspecified time, the appellant was required to report regularly to the authorities at their camp;

(10)    since coming to Australia, the appellant has converted to Christianity and the authorities have questioned his wife about his whereabouts and demanded that he must be handed over to them when he returns to Sri Lanka. His brother has been prevented from leaving Sri Lanka;

(11)    the appellant fears that he will be abducted or arrested and detained, and interrogated, tortured or killed or otherwise suffer harm if returned to Sri Lanka because of: his family having been identified by the authorities as LTTE supporters by reason of KS having been shot as a suspected cadre; his and his family’s long-time support of the LTTE; his ethnicity as a Tamil resident for generations in the Batticaloa district; his support for the TNA who are viewed as LTTE supporters; and his Christianity;

(12)    the appellant fears that:

(a)    he and his family will suffer harm upon his return to Sri Lanka because he was identified in an accidental leak of information by the Department of Immigration and Border Protection; and

(b)    upon his return as a failed asylum seeker or as a person who left Sri Lanka illegally, he will be subject to harm for having made allegations against the Sri Lankan government.

8    The Authority then set out its factual findings (Reasons [8] to [26]), including the following.

9    The Authority accepted that the appellant is a Sri Lankan citizen and that Sri Lanka is the receiving country for the purposes of the Authority’s review. It also accepted that the appellant’s family have lived for generations in Batticaloa, Eastern Province (Reasons [8]).

10    The Authority accepted that some of the appellant’s relatives had been abducted and/or killed in the conflict in 1990, but found that they had been “swept up in the increasing unrest at this time of the disintegrating peace accord”, and that there was no credible evidence they had been active LTTE members or supporters and it did not accept that they were (Reasons [9]).

11    The Authority described the evidence about the appellant’s family members’ support of the LTTE as “thin” and some of the appellant’s evidence as vague and contradictory (Reasons [10]). The Authority accepted that KS had provided some low level support by providing food and transport and that he had been shot dead in 1997 by security forces, but did not accept other claims made about his death and noted that there was no evidence as to the circumstances of his death. It did not accept the claim that the authorities refused to hand over the body or that there was any issue with obtaining a death certificate. It also did not accept that KS was an LTTE cadre (Reasons [11] to [12]).

12    The Authority indicated that it treated with scepticism the appellant’s claims that he had helped the LTTE and was a transporter for them as the appellant’s evidence about his support for the LTTE had “escalated with each iteration” (Reasons [13]). The Authority did not accept that any other family members were members or supporters of the LTTE (Reasons [14] and [16]). The Authority also did not accept that the appellant was known by a name which suggested that he was an LTTE supporter and an enemy of the government or the Sinhala people (Reasons [15]) or that he had been subjected to threats because of KS or himself (Reasons [17]). The Authority concluded that if the appellant had encountered difficulties with the security forces, this was because, like many other Tamils, he was caught up in routine search operations (Reasons [17]).

13    The Authority found that there was no credible evidence that any of the appellant’s family had been specifically discriminated against because of KS or arrested or charged with offences arising from any perceived LTTE membership, or that they had been sent for rehabilitation at any time. Further, there were no ongoing consequences for the appellant’s family because of KS and the appellant later was employed by the government. The Authority did not accept that the appellant’s family had been labelled as an “LTTE family” and found that to the extent that the appellant and his father had been arrested or detained this occurred at random and they were swept up with many others in the community (Reasons [18]).

14    The Authority expressed some scepticism as to parts of the appellant’s claim that he had been abducted by the Karuna Group in 2007 before accepting that claim, but found that he was a random target as a young male in an environment where such incidents were not uncommon (Reasons [19]).

15    The Authority accepted that in 2010 unknown persons had shot at a motorcycle carrying the appellant and his friend and that his friend had been killed, however the Authority did not accept that this incident indicated adverse interest in him by the Sri Lankan authorities, or that there was any evidence of any militia involvement (Reasons [22]).

16    The Authority did not find it plausible that the Criminal Investigation Department (CID) or Terrorism Investigation Division (TID) would be concerned at a TNA member attending the appellant’s sister’s wedding and did not accept that the appellant had been abducted or beaten or threatened in the violent manner claimed (Reasons [23]).

17    The Authority also did not accept the appellant went into hiding because of the events claimed to have occurred at the wedding, at all, let alone for a whole year (Reasons [24]).

18    The Authority accepted that Sri Lankan authorities attended the appellant’s home twice after his departure but found that this was part of the overall treatment of Tamils in the area at the time by the authorities and was not because of any particular suspicion that the appellant supported the LTTE or TNA. The Authority did not accept that the Sri Lankan authorities demanded that the appellant be handed over to them upon his return or that the Sri Lankan authorities are presently waiting for this to happen (Reasons [25]). The Authority also did not accept that the Sri Lankan authorities are preventing the appellant’s brother from travelling overseas generally; rather the issue is limited to concerns as to the particular countries in respect of which he is applying for visas (Reasons [26]).

19    After setting out its findings, the Authority referred to the definition of “refugee” in s 5H(1) and the definition of “well-founded fear of persecution” in s 5J of the Act and set out its assessment as to whether those definitions have been satisfied at Reasons [29] to [59]. It found that neither definition was satisfied, for the reasons that are summarised below.

20    The Authority did not accept that the appellant was regarded as a person of adverse interest by the authorities when he departed Sri Lanka. In reaching this conclusion, the Authority found that KS’s support for the LTTE was “very low level” and that of the appellant was similar and “even lower level and only during the ceasefire period”. The Authority also found that neither the appellant nor any of his family had ever been formally arrested and charged for any LTTE activity or sent by the authorities for rehabilitation. The Authority also noted that the appellant had been able to secure a government job (Reasons [29]).

21    The Authority accepted that the appellant was fearful that Sri Lanka was still violent and that he feared harm because of this and because of his family’s (low level) connection to the LTTE. However, the Authority found that the objective evidence did not support that fear as being well-founded (Reasons [30]). In this regard the Authority found that:

(1)    whilst the objective evidence demonstrated that persons with high profile links to the LTTE might remain subject to adverse attention from the Sri Lankan authorities, the appellant was not, and was not perceived to be, in that category of persons (Reasons [31]);

(2)    the objective evidence demonstrated that the monitoring and harassment of Tamils had decreased significantly and was more likely to be directed at former fighters and those advocating separatist resurgence; and that the role of the military in civilian life had greatly reduced (Reasons [32]);

(3)    the objective evidence demonstrated that “white van abductions” were mostly a thing of the past; and that the use of force by government officials against civilians was increasingly rare (Reasons [33]); and

(4)    the objective evidence demonstrated that returnees with previous LTTE connections are able to return without suffering ill-treatment and the interest of the police, if any, is not focussed upon previous LTTE involvement, but upon previous criminal activity (Reasons [34]).

22    The Authority was not satisfied, based on its findings, that the appellant faced a real chance of suffering harm because of any imputation of LTTE support by himself or any family member, or that, combined with the appellant’s previous involvement with the TNA, there was a real chance of harm (Reasons [35]). Nor did the Authority consider that the appellant’s support for the TNA would be imputed as support for the LTTE (Reasons [36]). The Authority was not satisfied that the appellant faced a real chance of serious harm because of his support for the TNA (Reasons [37]). The Authority found that his previous random abduction by the Karuna Group in a possible attempt at recruitment would not result in him facing a real chance of serious harm on return to Sri Lanka (Reasons [38]).

23    The Authority found at paragraph [40] of its Reasons that it was not satisfied, in light of its earlier analysis, that the appellant would be imputed with an adverse political opinion or profile or face a real chance of harm on the basis of the appellant being a Christian Tamil male from a former LTTE controlled area; or because of low level support provided by his family or himself to the LTTE; or because of his abduction by a paramilitary group. It concluded that his past experiences and profile would not give rise to a real chance of harm.

24    The Authority then considered the appellant’s claim to fear harm as a person who departed Sri Lanka illegally, and who would be returning as a failed asylum seeker. The Authority referred to DFAT information about the procedure on return to Sri Lanka in relation to a breach of the Sri Lankan Immigrants and Emigrants Act 1949, noting that this usually involved a fine, though there may also be a requirement to be detained in police custody at the airport for up to 24 hours (and possibly longer on a weekend). The Authority referred to information stating that DFAT understands that no returnee from Australia has been charged with an offence under the Prevention of Terrorism Act. The Authority also found that being subject to a penalty for breach of the Immigrants and Emigrants Act would be the result of a law of general application and thus would not constitute persecution for the purpose of the definition in s 5J(1) of the Act (Reasons [41] to [47]).

25    The Authority concluded, at paragraph [52] of its Reasons, that the appellant did not meet the definition of “refugee”.

26    The Authority then considered whether s 36(2A) was satisfied and in particular whether the appellant would suffer “significant harm” if he were to be returned to Sri Lanka (Reasons [53] to [59]). The Authority noted that it had found that there was not a real chance that the appellant faced significant harm in Sri Lanka on the basis of being a Christian Tamil male from a former LTTE-controlled area who briefly provided low-level support to the LTTE, or because of his association with KS and other family members, his support of the TNA, his abduction by paramilitaries or because he sought asylum. The Authority accepted that on the appellant’s return to Sri Lanka there was a real chance that he would be investigated and detained at the airport, potentially detained for a number of days pending bail on an Immigrants and Emigrants Act prosecution, and then imposed with a fine.

27    The Authority was not satisfied that the treatment the appellant would experience upon return to Sri Lanka amounted to significant harm. In particular, the investigation and subsequent detention would be for the purpose of establishing his identity, obtaining security and criminal checks clearance and then waiting for a magistrate to authorise his release and bail to be processed; and based on the country information the Authority was not satisfied that there was a real risk of the appellant being subjected to mistreatment whilst in police custody. The Authority stated that to the extent that the appellant may be detained in crowded and unsanitary conditions while on remand, the evidence suggested that the prison conditions in Sri Lanka were poor because of a lack of space and resources, which the government had reportedly been taking steps to address.

28    The Authority concluded that it was not satisfied that the acts or omissions of the Sri Lankan officials in this process, including the questioning, detention and imposition of a fine, are intended to inflict severe pain or suffering, pain or suffering which could reasonably be regarded as cruel or inhuman, or to cause extreme humiliation, as is required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in s 5(1) the Act; and does not consist of the death penalty or arbitrary deprivation of life or torture. Thus the Authority concluded that this treatment would not amount to significant harm within the meaning of s 36(2A) of the Act and that it was not satisfied that there is a real risk of the appellant suffering significant harm based on the combination of his profile and circumstances.

proceedings in the court below

29    The application (as amended) in the Court below raised two grounds of judicial review. Only the first ground of review is pursued in the appeal. It is reproduced below:

The Authority failed to consider certain integers of the Applicant’s claims leading to a failure to exercise jurisdiction.

Particulars

The Authority failed to exercise jurisdiction by failing to consider the following claims:

(i)    The Applicant and his family became displaced as refugees (IDPS) on 20 January 1990 due to attacks by the Sri Lankan Armed Forces and Police Special Task Forces (STF).

(ii)    If he returns to Sri Lanka, he will be taken to the Terrorism Investigation Division Detention Centre where he would will be subjected to torture and abuse, he will be accused of “acting in a manner prejudicial to national security” by applying section 6 of the Prevention of Terrorism Act 2002.

30    The reasoning of the primary judge on the first ground of review is discussed at [35] to [36] below as part of the consideration of the third ground of appeal.

THE appeal TO THIS COURT

Introduction

31    The appellant’s Notice of Appeal raises seven grounds of appeal. However, only the third ground of appeal corresponds with a ground of review advanced before the primary judge. It is convenient to consider that ground first before turning to the other grounds of appeal. The appellant provided no written submissions in support of any of the grounds of appeal. His oral submissions also did not address the grounds of appeal but instead addressed other matters, which are considered at [71] to [72] below.

Third ground of appeal

32    The third ground of appeal is reproduced below (without alteration):

3.    The Authority failed to consider the integers of the appellant’s claims leading to a failure to exercise jurisdiction.

Particulars

a.    The Authority failed to exercise jurisdiction by the claim the appellant and his family became displaced as refugees (IDPS) on 20 January 1990 due to attacks by the Sri Lankan Armed Forces and Police Special Task Forces (STF) at [paragraph 12];

b.    The appellant’s Statutory Declaration dated 9 January 2017 he made this IDP claim;

c.    The appellant in his attachment to his SHEV application 10 January 2017, at [paragraphs 19 & 20] stated that if he were to returned to Sri Lanka, he will be arrested on arrival and subjected torture and serious harm and possibly death by the Sri Lankan Armed Forces;

d.    He expressly stated that the reasons for the fear of harm includes animosity and hatred developed against the Tamils, particularly persons like him who is originally from Thuraineelavanai (sick, an area controlled by the LTTE previously in Batticaloa District of Easter Province in Sri Lanka) and his imputed profile as a supporter of LTTE;

e.    Appellant in his Statutory Declaration made the Torture Claim at [paragraph 29];

f.    The Authority failed to deal with the torture claim in the DFAT report at [paragraph 33] that torture may be carried out by police in regular criminal investigations and that poses a risk due to the police CID that he is a person threat to the National Security. (see SZTFI v Minister for Immigration and Border Protection [2015] at 53, per Perry J);

g.    The appellant also contends that the primary judge ought to have found that the Authority erred in considering the appellant’s alternative claim for complementary protection under s 36(2)(aa) of the Act on the basis that, if returned, he would be charged as a supporter of LTTE and a threat to the national security and face significant harm as a result;

h.    The [primary judge] failed to hold that the Authority failed to consider a clearly articulated claims that the appellant was risk owing to his support to the LTTE and the familial connection to the LTTE and erred in failing to assess the appellant’s claim and/or give meaningful consideration of the applicant’s claim.

33    As noted above, the first ground of review before the primary judge asserted a failure to consider the integers of the appellant’s claims, but was particularised as follows:

The Authority failed to exercise jurisdiction by failing to consider the following claims:

(i)    The Applicant and his family became displaced as refugees (IDPS) on 20 January 1990 due to attacks by the Sri Lankan Armed Forces and Police Special Task Forces (STF).

(ii)    If he returns to Sri Lanka, he will be taken to the Terrorism Investigation Division Detention Centre where he would will be subjected to torture and abuse, he will be accused of “acting in a manner prejudicial to national security” by applying section 6 of the Prevention of Terrorism Act 2002.

34    Thus, particulars (a) and (b) of the third ground of appeal correspond with particular (i) of the first ground of review and thus were raised before the primary judge. On a benevolent construction, the other particulars of the third ground of appeal might be considered to correspond with particular (ii) of the first ground of review. I will adopt such a construction.

35    The primary judge’s reasoning with respect to the first ground of review was set out at J[41] to [47]:

41.    It is well established that the Authority is not required to accept, uncritically, any and all claims made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Further, it is for the applicant to satisfy the Authority that he meets the criteria for being a refugee (see Abebe v the Commonwealth (1999) 197 CLR 510 at [187]). There is no general obligation for the Authority to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43].

42.    The duty imposed on the Authority by the Act, is a duty to review, not a duty to inquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. Jurisdictional error will only arise where there is an obvious failure by the make an obvious inquiry about a critical fact, the existence of which is easily ascertained.

43.    In Applicant WAEE, the Full Court of the Federal Court of Australia, French, Sackville and Hely JJ stated as follows at paragraphs [46]–[47]:

[46]    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons … there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]–[91]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason.

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is factual premise upon which a contention rests which has been rejected.

Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

44.    There is no dispute that the applicant claimed he and his family had been displaced as refugees on 20 January 1990 (see Court book page 42). However, I agree with the first respondent, in that the applicant’s claim is not further elaborated or how, in the overall context of the claims, it is said to have legal relevance to his claim for refugee protection. Even if it was a specific claim or integer, which the Court does not accept, the Court is satisfied that it has been subsumed by the finding that the applicant is of no adverse interest to Sri Lankan authorities, other than in relation to his illegal departure from Sir Lanka.

45.     The same reasoning applies to the contention the Authority failed to deal with the torture claim. The Authority determined there was no evidence before it that the applicant will be treated as a terrorist, or indeed as a criminal upon his return. The applicant would be treated as an illegal departee. At its highest, it appears the applicant has a fear but that fear was rejected by the Authority as not being well-founded. Based on a fair reading of what are otherwise comprehensive reasons by the Authority, there is no material before the Court which would indicate that there were unarticulated claims that required the Authority to consider and give reason.

46.    In this regard, I note the applicant was represented before the Authority and there was no evidence to indicate that he was denied an opportunity to fully put his claims and having them considered.

47.    In my view, ground one must fail.

36    I discern no error in the reasoning of the primary judge. As his Honour reasoned at J[44] to [45]:

(1)    the appellant’s claim that he and his family had been displaced as refugees on 20 January 1990 was not the subject of elaboration or explanation as to how this was relevant to his claim for protection;

(2)    in any event, the Authority found that the appellant was of no adverse interest to the Sri Lankan authorities, other than in relation to his illegal departure from Sri Lanka and thus the appellant was not at risk of harm. As the primary judge noted, to the extent that the claim that the appellant had been displaced as a refugee in 1990 was relevant to his claims for protection, such a claim was subsumed in the finding that the appellant was not at risk of harm; and

(3)    similarly, the appellant’s claim that he was at risk of torture was subsumed in the finding that objectively the appellant was not at risk of harm.

37    Thus, the third ground of appeal should be dismissed.

The remaining grounds of appeal

38    The remaining grounds of appeal were not reflected in the grounds of review advanced before the primary judge. It follows that the appellant cannot rely upon those grounds without a grant of leave by the Court: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11]. The Minister opposes leave being granted.

39    The exercise of the Court’s discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The predominant consideration is the interests of justice: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34]-[37] (Katzmann, Banks-Smith and Rofe JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel, Weinberg and Stone JJ) and Francuziak at [11]. In considering the interests of justice, the merits of the proposed new grounds are an important consideration (Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ)), as is the adequacy of any explanation for the ground not having been raised below (VUAX at [48]).

40    I note, in relation to all of the remaining grounds of appeal, that no explanation has been provided as to why they were not raised before the primary judge. I turn now to consider the merits of the remaining grounds.

First ground of appeal

41    The first ground of appeal is (without alteration):

1.    The appellant claimed that he fears persecution by Bodu Bala Sena by reason of being a Christian Tamil at [CB434] and [438–439]. This claim was an aspect of the appellant’s overall claim that he has a well-founded fear of persecution and that there is a real risk he will suffer significant harm if he is returned to Sri Lanka. The Immigration Assessment Authority (here in after referred as “the Authority”) failed to consider or address this claim.

Particulars

a.    The Bodu Bala Sena (BBS - translated as the Buddhist Power Force) is a radical Sinhalese Buddhist nationalist organisation based in Colombo, Sri Lanka that was formed during 2012. The BBS seeks the enforcement of Buddhist predominance in Sri Lanka. It has organised various campaigns against the country’s minority Muslim and Christian communities which, according to the organisation, poses a threat to Sri Lanka’s Sinhalese-Buddhist identity;

b.    The BBS engages in hate speech and attacks against minority religions. Its headquarters are located at Sri Sambuddha Jayanthi Mandira in Colombo. Sri Sambuddha Jayanthi Mandira is owned by the Buddhist Cultural Centre, an organisation founded by Kirama Wimalajothi. Ethnicity and religion are closely linked in Sri Lanka, with the Sinhalese majority predominantly Buddhist, the Tamils mostly Hindu, and Muslims regarded as a separate ethnic group. Association with Sri Lanka Government allegations persist that the BBS enjoys a close relationship and played a dominant part in the Presidential victory of Gotabaya Rajapaksa;

c.    The Federal Circuit Court Judge Humphreys failed to hold that the Authority failed to properly exercise its jurisdiction by failing to make findings and give reasons in respect of the applicant’s claim that he fears persecution by Bodu Bala Sena.

42    The ground is without merit. The Authority expressly considered the claim at paragraph [51] of its Reasons:

51.    The applicant claims that he has converted to Christianity since arrival in Australia. I accept his evidence and letter provided from a Christian pastor at the Church he attends and accept that he is now a Christian. He claims that militant nationalist Buddhist groups violently target religious minorities including Christians, and are taking over property to build shrines, with government support. Country information does indicate some isolated incidents of violence by such groups against minority religions and expansion into new areas. Such incidents, when related to Christian institutions, were more common in the southwest of the country compared to Batticaloa and were more targeted against the clergy or evangelical proselytisers; and additionally, since the new government under President Sirisensa in 2015 there has been reduction in incidences of violent attacks and property damage. I note that the applicant is not a clergy-man and does not claim to proselytise. DFAT assesses that most members of religious groups are able to practice their faith freely, however, openly proselytising or trying to convert others may attract risk of harassment. I am not satisfied the applicant faces a real chance of harm for reason of his religion.

(emphasis added)

43    As noted above, there is no explanation for the failure to have raised this issue as a ground of review before the primary judge. This is of particular importance when such a ground has previously been abandoned in circumstances where it was included in the appellant’s Amended Application to the Court below, but was deleted in the appellant’s Further Amended Application to that Court (being the application upon which the appellant moved before the primary judge).

Second ground of appeal

44    The second ground of appeal is (without alteration):

2.    The Authority failed to consider whether, considering the appellants claims cumulatively or collectively, he had a well-founded fear of persecution.

Particulars

a.    The appellant fears being persecuted for reasons of race as a Tamil, a resident of former LTTE controlled area in Batticaloa, Eastern Province of Sri Lanka and a minority Christian and has a well-founded fear of persecution (Section 5J (1) (a) of the Migration Act 1958.

b.    The particulars are mentioned in Ground 5.

45    The particulars to the fifth ground of appeal, which are incorporated by reference, are:

Particulars

a.    The Authority said “From the applicant’s evidence I am willing to accept that the applicant’s elder sister’s father in law was killed by Sri Lankan authorities, in Thuraineelavanai in 1985, of the applicant’s disappeared-presumed- dead father-in-law and cousins I am willing to accept that they were abducted and killed in 1990 by unknown persons, possibly by L TTE for the cousins, given the death certificate references to abduction by “the terrorists” at [paragraph 20].

b.    The Authority also said, “I am willing to accept the applicant’s evidence that his uncle KS was shot dead in 1997 by security forces.” at [paragraph 12].

c.    The Authority said “I accept that the applicant is fearful that Sri Lanka is still a violent country that discriminates against Tamils from former LTTE areas and that he will be harmed because of this and his family connection to the LTTE.” at [paragraph 30].

d.    The Authority said, “I accept his evidence and letter provided from a Christian pastor at the Church he attends and accept that he is now a Christian.” at [paragraph 51].

e.    The Authority failed to give due consideration based on the applicant’s familial association with the LTTE according to “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012.

46    The Authority considered each of the individual claims made by the appellant and found that none of them gave rise to a real chance or real risk of harm to the appellant upon return to Sri Lanka. In those circumstances, it was not necessary to consider the claims “cumulatively” as this could not have produced a different result: see Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34] (Gilmour, Markovic and O’Callaghan JJ). This ground does not have merit.

Fourth ground of appeal

47    The fourth ground of appeal is reproduced below (without alteration):

4.    The Authority failed to consider the test ‘what if I am wrong? Approach to the real chance test and the primary judge failed to hold that this was a jurisdictional error.

Particulars

a.    The ‘what if I’m wrong’ test was further explained by the Full Federal Court in MIMA v Rajalingam (1999) 93 FCR 220.

b.    The ‘what if I am wrong’ test laid down in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 required the Authority, in the event that a finding of fact was reached without sufficient certainty, to consider the consequences in the event that the finding was wrong;

c.    The language used by the Authority in making its findings demonstrates that it did have real doubt about the correctness of its findings. Therefore, it did fall into error by failing to consider the possibility that its findings were wrong.

d.    Obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision­maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

e.    The Authority fell short of the requisite degree of confidence as to the applicant’s account so as to avoid the need to assume the opposite and examine the consequences of interaction with the Karuna Group. In particular, at no point did the Authority explore the contemporary status or conduct of the Karuna Group, on an assumption that the applicant had had interaction with the Karuna Group due to his support of the TNA.

48    The essence of this argument appears to be that: the Authority’s findings concerning the appellant’s interactions with the Karuna Group should be read as expressing the Authority’s view that it was in doubt about those findings; where there is such a doubt a decision-maker is required to consider the consequences in the event that the finding was wrong (citing Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220); and the Authority failed to undertake such a consideration, and thus made a jurisdictional error.

49    Notably, the particulars to the fourth ground of appeal do not identify which parts of the Reasons the appellant contends are attended by doubt and no submissions were made addressing this ground.

50    The Authority noted at paragraph [7] of the Reasons the appellant’s claims that:

(1)    in 2007, the appellant was abducted and detained for five days by persons whom he suspected to be part of the Karuna Group working with the SLA; he was tortured and held without food but refused to undergo weapons training; and he was later released; and

(2)    between 2008 and 2010, the appellant worked as a bus conductor. During that period, he was harassed and accused of being an LTTE supporter by the Karuna and Pillayan militia groups and the security forces, both at work and whilst commuting to and from work.

51    The Authority considered these claims at paragraphs [19] and [20] of its Reasons. As to the first claim, the Authority found it somewhat incongruous that having abducted the appellant and held him for 3 days the Karuna group would simply release him to go home with no ransom demanded, because he was unwilling to undergo their military training. Nevertheless, the Authority accepted that the appellant was abducted by the Karuna group. It found that the appellant was a random target by the Karuna group as a young male in an environment where such incidents were not uncommon. As to the second claim, the Authority accepted that this conduct occurred, that the appellant was harassed by it and that it was a factor in the appellant resigning from his job, but did not accept that the appellant had been singled out because of any features other than he was a Tamil male in a volatile, militarised war-time and then post-war setting.

52    In its consideration of whether the definitions of “refugee” and “well-founded fear of persecution” had been established, the Authority stated at paragraphs [37] to [38] of its Reasons:

37.    I note that election campaigning in 2008 and 2012 was more volatile than the more recent 2015 election, with conflict between the split Karuna and Pillayan factions and a more repressive government regime against other opposition parties. I note country information that the Pillayan and Karuna para-military group numbers have largely reduced as members have joined the police or army and I consider these groups are no longer the threat they once were to the community generally. …

38.    I find that his previous random abduction by Karuna group in a possible attempt at recruitment during the war raises no significance now for the applicant. The war is over and nothing further eventuated arising from that event; and as described above the Karuna group is now a relatively diminished force. I am not satisfied the applicant faces a real chance of serious harm upon return to Sri Lanka on the basis of a prior abduction by Karuna group.

53    The only aspect of the above reasoning which could be considered to reveal some doubt was the Authority noting that there was an incongruity within the appellant’s claim that the Karuna group abducted the appellant and held him for 3 days, asked him to undergo military training and then simply released him to go home with no ransom demanded, because he was unwilling to undergo that training. However, the Authority resolved that doubt in favour of the appellant by finding that he had been abducted. In these circumstances, there is no room for the operation of the so-called ‘what if I am wrong’ test.

54    Thus, the argument summarised at [48] above fails at the outset, and it is unnecessary to consider the validity of the remainder of that argument. The fourth ground of appeal is devoid of merit.

Fifth ground of appeal

55    The fifth ground of appeal is reproduced below (without alteration):

5.    There was no evident and intelligent justification for the Authority to say “I am not satisfied the applicant will be imputed with an adverse political opinion or profile of significant LTTE or separatist affiliation or face a real chance of harm because he is a Christian Tamil male from a former LTTE-controlled area, because of his uncle or other family members or any low level support he himself provided to LTTE in the ceasefire, in support of TNA or his abduction by a paramilitary group. I am not satisfied there is a real chance the applicant will face any harm as a result of his past experiences and profile” at [paragraph 40].

Particulars

a.    The Authority said “From the applicant’s evidence I am willing to accept that the applicant’s elder sister’s father in law was killed by Sri Lankan authorities, in Thuraineelavanai in 1985, of the applicant’s disappeared-presumed- dead father-in-law and cousins I am willing to accept that they were abducted and killed in 1990 by unknown persons, possibly by LTTE for the cousins, given the death certificate references to abduction by “the terrorists” at [paragraph 20].

b.    The Authority also said, “I am willing to accept the applicant’s evidence that his uncle KS was shot dead in 1997 by security forces.” at [paragraph 12].

c.    The Authority said “I accept that the applicant is fearful that Sri Lanka is still a violent country that discriminates against Tamils from former LTTE areas and that he will be harmed because of this and his family connection to the LTTE.” at [paragraph 30).

d.    The Authority said, “I accept his evidence and letter provided from a Christian pastor at the Church he attends and accept that he is now a Christian.” at [paragraph 51].

e.    The Authority failed to give due consideration based on the applicant’s familial association with the LTTE according to “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012.

56    Paragraph [40] of the Reasons (with emphasis on the words extracted in the fifth ground of appeal) is as follows:

40.    In light of the above I am not satisfied that the applicant will be imputed with an adverse political opinion or profile of significant LTTE or separatist affiliation or face a real chance of harm because he is a Christian Tamil male from a former LTTE-controlled area, because of his uncle or other family members or any low level support he himself provided to LTTE in the ceasefire, his support of TNA or his abduction by a paramilitary group. I am not satisfied there is a real chance the applicant will face any harm as a result of his past experiences and profile.

57    In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] Allsop CJ said the following concerning the review of a decision for legal unreasonableness:

The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

58    The effect of the first sentence of paragraph [40] of the Reasons is that the Authority was not satisfied “ [i]n light of the above” – which I take to be the earlier parts of the Reasons and in particular paragraphs [28] to [39] of the Reasons – that the following claims made by the appellant:

(1)    the appellant being a Christian Tamil male from a former LTTE-controlled area;

(2)    the support provided by the appellant, KS or other family members to the LTTE in the ceasefire;

(3)    the appellant’s support of the TNA; and

(4)    the abduction of the appellant by a paramilitary group,

produced the following conclusions:

(1)    the appellant will be imputed with an adverse political opinion or profile of significant LTTE or separatist affiliation; and

(2)    the appellant will face a real chance of harm.

59    The second sentence of paragraph [40] is a summary of the first sentence.

60    The appellant made no submissions as to why it was legally unreasonable for the Authority not to be satisfied of those conclusions. In my view that state of non-satisfaction was well open to the Authority, for the detailed reasons provided in its Reasons.

61    The particularisation to the fifth ground of appeal appears to contend that it was legally unreasonable for the Authority to not be satisfied of those conclusions because it had accepted the claims made by the appellant which are referred to in particulars (a) to (d) and had not given due consideration to the appellant’s familial association with the LTTE according to “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012 (particular (e)). In my view, these particulars provide no support for the contention that the Authority’s failure to be satisfied of the conclusions was legally unreasonable.

62    Whilst the Authority accepted the claims made by the appellant that are referred to in particulars (a) to (d), the Reasons indicate that these claims were not persuasive when considered as part of the totality of the evidence before the Authority, including country information concerning Sri Lanka. No legal unreasonableness is evident in reasoning in that way.

63    Turning to particular (e), the Authority stated in paragraph [31] of its Reasons:

In the opinion of the UK Home Office, merely being a Tamil does not of itself warrant international protection as a refugee and neither does simply originating from an area formerly under LTTE control without additionally having or being perceived to have had a significant role in the LTTE, or in post-conflict Tamil separatism. The applicant submitted in his pre-interview submissions that he comes within the risk profiles referred to in the 2012 Guidelines issued by the UNHCR, which include former LTTE supporters involved in provision of food or transport, and close family members or dependents of such people. However, I note that those Guidelines were issued 5 years ago and there has been significant change in Sri Lanka since then, with a new government in 2015, such that those Guidelines are no longer of considerable weight, particularly regarding people with very low level association to the LTTE. At the time of those Guidelines the previous Rajapaksa government was focussed on identifying and arresting and prosecuting or rehabilitating former LTTE members and an environment of repression pervaded, under which many Tamils reported being monitored, harassed and arrested and/or detained and tortured by security forces, particularly in the north and east. Since 2015 the government under President Sirisena, has focussed more on prioritising human rights and reconciliation and greater engagement with Tamil political parties, including those comprising ex-LTTE members. The Sri Lankan authorities are now more concerned with identifying people who constitute a threat to the present, unitary state of Sri Lanka because of their real or perceived significant role in relation to post-conflict Tamil separatism or resurgence of hostilities. Nevertheless, people with high-profile former LTTE links might remain subject to adverse attention from authorities. I have found the applicant did not and was not perceived to have had any significant involvement in LTTE or high profile links to them nor in any separatist activities.

(emphasis added, citations removed)

64    Clearly, the UNHCR Eligibility Guidelines were taken into account. The weight to be afforded to them was a matter for the Authority.

65    Thus, it was open to the Authority, having considered all of the material before it to conclude that it was not satisfied that the appellant would upon return to Sri Lanka, be imputed with an adverse political opinion or profile of significant LTTE or separatist affiliation; or that he would face a real chance of harm. That conclusion was open to the Authority and is not a conclusion that no reasonable decision-maker could have reached.

66    It follows that the fifth ground of appeal lacks merit.

Sixth and seventh grounds of appeal

67    It is convenient to consider these grounds together. They are (reproduced without particulars):

6.    The change of government and the new information of the country information the Authority’s decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 11707 at [457]–[459]).

7.    The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants’ protection claims in Australia the Authority’s decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 11707 at [457]–[459]).

68    These grounds of appeal – which contend that the decision of the Authority has become legally unreasonable because of a change of government, new country information and the Emmerson Report – are devoid of merit for the following reasons. First, the appellant has not provided evidence to the Court of these events. Secondly, in any event, as these events occurred after the Authority’s decision they are not relevant and cannot be taken into account in considering whether the Authority’s decision was tainted by legal unreasonableness: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [28] (Beach, Thawley and Cheeseman JJ). Thirdly, these grounds in substance invite impermissible merits review. Finally, the appellant’s reliance upon Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [457]-[459] is misplaced for the reasons discussed by Abraham J in AQK17 v Minister for Immigration and Border Protection [2019] FCA 1176 at [26] and Kerr J in BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211 at [84] to [89].

Conclusion concerning the remaining grounds of appeal

69    For the reasons set out above, none of the remaining grounds of appeal has sufficient merit to warrant a grant of leave. Further, as noted above, no explanation has been proffered as to why the points on which these grounds of appeal are based were not the subject of grounds of review before the primary judge. Each of the remaining grounds should be dismissed.

OTHER MATTERS RAISED BY THE APPELLANT

70    In support of his appeal, the appellant made oral submissions. Those submissions addressed the present situation in Sri Lanka and his fear of harm if he were to be returned. As noted above at [68], these matters cannot be taken into account in this appeal.

71    The appellant also made submissions that addressed the merits of the Authority’s decision. However, consideration of the merits of that decision is beyond the jurisdiction of the Court below on a judicial review (and thus this Court on appeal), such jurisdiction being confined to deciding, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute upon the decision-maker: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [29]-[30] (Kiefel CJ, Gageler, Keane and Gleeson JJ); EGZ17 at [27].

conclusion

72    The appeal should be dismissed. As the appellant has been unsuccessful, he should pay the Minister’s costs of the appeal as agreed or taxed. The title of the Minister should be changed, as requested by the Minister. I will make orders accordingly.

Associate:    

Dated:    5 October 2022