FEDERAL COURT OF AUSTRALIA

DJG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 119

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal is dismissed.

3.    The appellant must 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

FARRELL J:

INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court of Australia (as that Court was then known) (FCCA): DJG17 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCCA 1400 (J). The FCCA Judge dismissed an application for judicial review of a decision (D) of the Immigration Assessment Authority (or IAA) made on 6 July 2017, to affirm a decision of a delegate of the responsible Minister to refuse to grant the appellant (to whom I may also refer as DJG17) a Safe Haven Enterprise visa (or SHEV).

2    The sole ground of appeal pressed at the hearing was as follows:

His Honour in the Court below erred in dealing with the Appellant’s arguments with respect to its second ground by failing to give them genuine and realistic consideration and/or by holding at [49] of the decision, that the IAA gave “proper and adequate reasons for its findings”.

3    The second ground of review before the FCCA was as follows:

The IAA has failed to engage in a genuine and realistic consideration of the Applicant’s claims.

Particulars:

The IAA has failed to engage in a careful, fair and reasonable approach to assessing the credibility of the applicant so as to avoid engaging in a “quest to disbelieve”.

4    By the time the appeal was heard DJG17 no longer contended that he is not an “unauthorised maritime arrival” as defined in s 5AA of the Migration Act 1958 (Cth), although it had been the first ground of review before the FCCA and ground one of an amended notice of appeal.

PROTECTION CLAIMS

5    The following summary of DJG17’s claims derives from the IAA’s summary at D[7]:

(a)    DJG17 is a Tamil Hindu who was born in [redacted], in the Eastern Province of Sri Lanka. His wife and children reside with his mother in Trincomalee. His father died from natural causes in 2000;

(b)    One of his brothers (L) died in 1990 at the hands of the Sri Lankan Army (SLA). L had been detained with a group of young men and about a week later, their burnt bodies were found in a paddy field;

(c)    In March 2001, another brother (S) was killed in crossfire between the SLA and the Liberation Tigers of Tamil Eelam (LTTE). DJG17 and his mother were arrested and detained for a few hours. They were forced to sign a paper saying that S had been in the LTTE, as a precondition to release of his body;

(d)    The SLA and the Criminal Investigation Division (CID) came to the family home. DJG17 and his mother were arrested and taken to Trincomalee. His mother was released but DJG17 was accused of helping the LTTE. He was held for 35 days and tortured but was released when his mother paid a bribe. In his statement in support of his visa application (SHEV statement), DJG17 claimed that this occurred in 2001, shortly after S’s death. At the interview with the delegate on 21 September 2016, DJG17 and his agent clarified that this detention and torture actually occurred in 2006, not 2001;

(e)    He and his family moved to the Northern Province and as the fighting escalated, the family was displaced to various locations. In April 2009, DJG17 and his family were placed in an Internally Displaced Persons (IDP) camp. While they were there, DJG17 was taken, interrogated and beaten by the CID on a number of occasions;

(f)    In around April 2010, the family was released and returned to Trincomalee. DJG17 was required to report weekly to the CID base in Trincomalee. He was not beaten or harmed but he had to give the CID “gifts” and occasionally do cleaning jobs there;

(g)    In June 2012, DJG17 reported to the base, where a CID man recognised him from the 2006 detention. He was immediately arrested, detained for four weeks and tortured until his mother paid another bribe. He went into hiding after he escaped and began making arrangements to flee Sri Lanka;

(h)    He arranged to meet his wife on the day he fled Sri Lanka. They met in a coconut plantation but during the meeting, DJG17 heard noises in the jungle. He heard a gunshot as he ran away. He claims that the CID had come to the plantation to capture him; and

(i)    Since he left Sri Lanka, his wife has received many visits from the CID which is looking for him. The CID has verbally abused, intimidated, pushed and interrogated his wife. He fears returning to Sri Lanka because the CID suspects he is a member of the LTTE and because of the deaths of his brothers. He also fears harm due to being a Tamil and because he departed Sri Lanka illegally, while subject to reporting requirements.

IAA’S DECISION

6    The following paragraphs of the IAA’s decision record are relevant to the sole ground of appeal as argued at the hearing.

7    At D[11], the IAA said:

The applicant’s claims as set out in the initial entry interview on 17 January 2013 (the initial interview), the invalid PV [protection visa] application in 2013, the statement of claim in the SHEV application [dated 12 November 2015] and at the interview are confusing and in some areas they are inconsistent or contradictory. I have therefore approached the applicant’s history and claims chronologically.

8    In relation to the death of DJG17’s brother L, the IAA said (emphasis added):

12.    The applicant claims that his brother L died in 1990. In the initial interview he stated that L had been taken by the SLA and the family presumed he had been shot. He said a death certificate was issued three or four years ago. The referred materials contain a copy and translation of a death certificate issued in 2007. The certificate is in L’s name and states that he died in August 1990. Under the cause of death the certificate states “Believe that he is dead on the fact that more than one year has passed since his missing”. Although the applicant did not mention L in his invalid PV application, his SHEV statement claims that the SLA had taken L and other young men away. About a week later, 30 burnt bodies were found in a paddy field. His father went there and identified L. At the interview the delegate noted that the death certificate listed L as missing. The applicant said that the government will not give the true reason for deaths. He also said that he thinks L had been helping the LTTE but he (the applicant) was only small at the time.

13.    I take into account that while the applicant may believe that L was taken and murdered by the SLA for being involved with the LTTE, there is no other evidence other than a certificate that states L is missing. I also note that the applicant has not claimed at any time that he or any other member of his family has ever been questioned, harassed or subject to any suspicion because of L. On the basis of the evidence and information before me, I accept that L disappeared in 1990 and I am prepared to accept that his burnt body was found sometime later. However, as there is no evidence that the family was subject to any suspicion or questioning in relation to L or this incident, I do not accept that L was suspected of being a member of the LTTE or that his death was a result of any such suspicion. I do not accept that the applicant had or continues to have any adverse security profile with the authorities arising from the death of L.

9    In relation to the death of DJG17’s brother S, the IAA said (emphasis added):

14.    The applicant claims that his brother S was killed in a crossfire between the SLA and the LTTE. His PV and SHEV statements are contradictory, putting this event occurring in 2001 or 2006. He has however provided a copy and translation of a death certificate that states that S died in March 2001, as a result of cardio-respiratory arrest failure to brain functioning due to gunshot injuries. I accept this certificate and find that S died in 2001. I have considered the remainder of the applicant’s evidence and claims against that date. I am also satisfied that the different dates given by the applicant are the result of genuine confusion and I do not draw any adverse inferences in relation to these different dates.

15.    The applicant claims that S was not a member of the LTTE and was caught in crossfire. However, after S was killed, the applicant and his mother were arrested and detained by the authorities. The applicant’s evidence about duration is again confused and inconsistent but I am prepared to accept the clarification given by the agent at the interview, that the applicant was held for a few hours. He and his mother were forced to sign a document stating that S was part of the LTTE before the authorities would release S’s body. The applicant said that he was not harmed during this period of detention.

16.    The applicant claims that he was arrested by the CID in 2006 and held in detention for about 35 days. He claims that he was asked about S’s role with the LTTE and then accused of being LTTE himself. He denied any knowledge of S’s involvement and denied having any role with the LTTE but the CID did not believe him. He was interrogated, beaten and tortured severely throughout this period. Eventually, his mother was able to secure his release by paying a bribe to a CID officer. After the bribe was paid, either one (the invalid PV statement) or two (the SHEV statement) CID officers put the applicant into a van, drove him to a place in the jungle and released him. They told him that he should leave Trincomalee.

17.     The applicant has not explained why the authorities would suddenly take an interest in S five years after his death. However, I take into account that in 2006 the LTTE was conducting increasing military operations that led to the ceasefire breaking down and an escalation in the conflict. It is plausible that in that environment the applicant, as a Tamil male in that area at that time, was detained and questioned about his involvement with the LTTE. I am prepared to accept that he was detained for a period of time and subjected to harm and mistreatment. I am also prepared to accept that his family paid a bribe to secure his release.

10    In relation to DJG17’s time in the IDP camp, the IAA said (emphasis added, citation inserted):

19.    In April 2009, the applicant and his family were captured by the SLA and taken to the [redacted] Camp, an IDP camp in the [redacted] district. Although the family was kept together in this camp and the applicant was not arrested, he claims that he was called to the CID routinely for interrogation, during which he was asked questions about the LTTE and any LTTE members that he knew. He said that he was abused, beaten and tortured during this questioning. The family was released from the camp in April 2010 and returned to Trincomalee, where the applicant resumed work as a fisherman. He claims that he was required to report to the CID on a weekly basis and had to give the officers “gifts” of money, cigarettes, alcohol or fish.

20.    I have considered information in the referred materials [Office of the United Nations High Commissioner for Human Rights (OHCHR), “Report of the OHCHR Investigation on Sri Lanka (OISL) (A/HRC/30/CRP.2)”, 16 September 2015, at pp 202-218] and the applicant’s claim that he was called in for questioning by the CID on a number of occasions whilst in the IDP camp. I note from the referred material that the Sri Lankan authorities, including the SLA and the CID, undertook a comprehensive and multi-stage screening process to identify members of the LTTE both prior to and whilst persons were in IDP camps. This included using former LTTE members as informers to identify persons. Former LTTE and military intelligence personnel often walked through DP camps and pointed out persons who were then taken for further interrogation. During the interrogations, the authorities commonly used inducements, threats and physical violence. Detainees were often questioned on many occasions. The applicant’s general claims in this regard are consistent with the referred information and are plausible.

21.    The information cited above also indicates that detainees of more than general interest to the authorities were required to report daily to the security offices while others simply disappeared from the camps, usually at night, and were never seen again. The IDP camps continued to operate with significant restrictions on detainees’ movements, contacts and personal liberty, until the end of 2009/beginning of 2010, when the release process began. This process was also highly regulated and began with the elderly and other vulnerable groups, as well as persons whose services were required outside the camp, such as medical personnel. Other families were able to leave after paying bribes, but the applicant has not claimed that his family did so. Families returning to home areas that remained militarised reported that they often faced surveillance, threats and harassment.

22.    I accept that the applicant was called in for interrogation a number of times. However, I note that he was not arrested or required to report on a daily or other regular basis. I also take into account that persons who were suspected of any involvement or association with the LTTE, including those with only a civilian or familial association, were separated from their families and taken to detention centres. I have also considered my finding above that he was questioned about LTTE involvement in 2006 and although I have accepted that his family paid a bribe to arrange his release, I take into account that at no time during his 12 months in the IDP was he asked about the 2006 detention or his escape, or subject to any other interest arising from these events.

23.    It is implausible that if the CID had any level of historic or ongoing suspicion of the applicant, it would have allowed the applicant to remain with his family in the IDP camp and then later leave the IDP camp without further investigation or follow-up. The information cited above indicates that even if the authorities did not have any evidence against someone, anyone with any suspected link to the LTTE or similar profile was separated, taken to a detention camp or simply disappeared. I am also satisfied on the basis of the information cited above that if the authorities had any interest in the applicant whatsoever, including any interest arising from his detention in 2006, he would have been subject to more surveillance, monitoring and questioning after his release, rather than simply a weekly reporting regime. I am not satisfied that the applicant was of any ongoing interest to the CID when he left the IDP camp and I find that he was not at that time imputed with any support for or personal association with the LTTE (including for the reasons of residing in LTTE-controlled areas and being forced to undertake labour), or because of his brothers. I also find that he was of no interest to the CID arising from the 2006 incident.

24.    I am prepared to accept that the applicant was required to report weekly after his release and that he was asked to give the authorities money or goods during these visits. I note that he was not asked any questions or subject to any harm other than the requests for “gifts” (including some of his fish catch) and occasionally being asked to do some cleaning jobs. The applicant has not claimed that the imposition of the gifts and cleaning tasks caused any hardship to him or to his family. While I accept that the impositions were no doubt annoying and frustrating, I am satisfied that the conduct did not amount to serious harm. On the basis of the country information cited above, I find that this reporting and harassment was applied to many released IDP and was not indicative that a person had an adverse security profile with the authorities. I find that the applicant did not have an adverse security profile at the time of his release from the IDP camp.

25.    I have also considered whether the applicant may face similar reporting and impositions if he returns to Sri Lanka. The referred materials indicate that, as the delegate put to the applicant at the interview, there has been a decrease in monitoring and military involvement, although some individuals in the North and East still report being questioned or monitored. As noted below, the country information indicates that the government is particularly concerned about LTTE resurgence, anti-government and pro-Tamil activities and it is plausible that persons with such profiles, including persons released from rehabilitation and detention centres, may be subject to ongoing monitoring. There is nothing in the material that indicates that former IDP remain subject to monitoring or reporting, although I do note reports that in the neighbouring district of Batticaloa, there has been a fresh round of registrations. Persons who were in the Vanni area (which includes [redacted]) during the conflict have reported being questioned again about their presence there and any involvement with the LTTE. While these reports do not refer to any ongoing reporting regimes, it is plausible that persons who are under particular suspicion may be required to do so. However, I have found above that the applicant did not have an adverse security profile at the time of his release and while he has since departed Sri Lanka while subject to reporting requirements, I am satisfied that this would not of itself give rise to an adverse security or criminal profile. I am not satisfied that he will be subject to regular reporting to the authorities should he return to his home village.

11    The IAA addressed DJG17’s claim that he was detained in 2012 and his departure from Sri Lanka at D[26]-[43].

12    The IAA noted that, apart from weekly reporting, DJG17 did not claim to have suffered any harm, harassment or problems for two years after his release from the IDP camp but he claimed that his problems began in early June 2012 when he attended the CID office as part of his weekly reporting and a CID officer who had interrogated him in 2006 recognised him. In his invalid PV application, DJG17 claimed that he was immediately arrested and his CID file was brought out, the CID officer asked him how he escaped in 2006 and accused him of being LTTE. He was in detention for four weeks, tortured as he has been in 2006 until his mother paid a bribe for his release. In his SHEV statement, he said that after the CID officer recognised him, he asked how he had escaped and where he had been. The officer did not believe DJG17 when he said he had been in an IDP camp but allowed him to leave. Later that month, he was detained, held and beaten for four weeks until his mother paid a bribe for his release: D[26]-[27].

13    The IAA then went on to say (emphasis added):

28.    I have not drawn any adverse inferences from the minor inconsistencies between the applicant’s claims. However, I have found above that although the applicant was subject to screening and regular questioning in the IDP camp, his previous detention in 2006 and escape was never identified or mentioned. I take into account the applicant’s claim that at this interrogation, the CID produced and showed him a file relating to him. It is implausible that if the applicant had any sort of CID profile or file relating to suspected LTTE involvement, and/or as an escapee from CID custody, he would not have been identified during the IDP screening process. Furthermore, it is not plausible that a CID officer would recognise and remember him six years after the detention in 2006, given that the applicant had no particular profile and the large numbers (in the hundreds of thousands) of Tamils who would have been processed during that time. In addition, the applicant’s claims of detention, torture and release after payment of a bribe are strikingly similar to the events he described in 2006.

29.    While I am prepared to accept that the applicant may have been asked questions at various times during his reporting requirements in 2010-2012, I do not accept that he was identified, detained and tortured as he has claimed. I do not accept that he was only released after payment of a bribe. I find that the applicant has fabricated the claims in relation to the 2012 detention and that he was of no interest to the authorities and did not, and does not now have an adverse security or criminal profile. As I have found that the applicant did not have an adverse security or criminal profile, it follows that I do not accept the claims that the CID came to the coconut grove on the day he was fleeing Sri Lanka or that shots were fired.

30.    I am prepared to accept that in the days immediately following his departure from Sri Lanka the authorities may have noted that he had not reported to the CID office. I am prepared to accept that officers may have visited his family home on one or two occasions in 2012 to enquire about his whereabouts, and may have intimidated his wife during these visits. However, I note that no other member of his family has been visited or questioned about him and as I have found that the applicant does not have any adverse security or criminal profile, I do not accept the applicant’s claims that the authorities continue to search for him or that they visit his home or harass his wife.

31.    I also take into account that the applicant has not claimed, and there is no evidence before me that he or his family has been involved in any other political, separatist, LTTE-resurgence, anti-government or similar activities, either in Sri Lanka or in Australia.

32.    Overall, I find that the applicant is not a person of interest to the Sri Lankan authorities as a result of any real or imputed LTTE association, including any family association, or for any other political association, involvement or belief. I find that he does not have an adverse security or criminal profile because of his past detentions or his departure while subject to reporting requirements and that he does not face a real chance of serious harm for any of these reasons, should he return to Sri Lanka.

14    The IAA also made findings concerning the risk of harm to DJG17 as a Tamil male from the Eastern Province having regard to country information which indicated that the situation had improved since he departed Sri Lanka in 2012: D[34]-[41]. The country information indicated that:

(a)    Political stability had improved since the election of Maithripala Sirisena as President of Sri Lanka in 2015 with greater inclusion of Tamils in important positions and representation in politics, the civil defence forces and the police (among other things): D[34]-[37]. Having said that, the IAA addressed reporting by the US State Department in “Sri Lanka – Country Report on Human Rights Practices 2015”, 13 April 2016 as follows (footnotes inserted):

36.    The US State Department continued to report human rights abuses in 2015 and noted cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists, and LTTE sympathisers; however, overall the reports of harm relate to people with LTTE connections or who are otherwise Tamil separatist activists. The same report notes that President Sirisena has sworn in a Tamil as the first Tamil chief justice of the Supreme Court in two decades. The president is also allowing some limited commemoration gatherings in the Northern and Eastern Provinces, changed “Victory Day” to “Remembrance Day” and permitted the singing of the national anthem in Tamil as well as Sinhala. Other information in the referred materials notes that many people who were detained under the Prevention of Terrorism Act (PTA) have been released and that investigations into civilian deaths have begun. [“Truths of Civil War Key to Harmony in Sri Lanka”, New Indian Express, 21 May 2015] At the same time, Tamils have been given increasing positions and representation in politics, the civil defence forces and the police. [South Asia Terrorism Portal, “Sri Lanka Timeline - Year 2015”, 19 October 2015; “Five Tamils in Lankan Council of Ministers”, New Indian Express, 9 September 2015; “Sri Lanka police to recruit 1,500 Tamil youths as PCs”, Colombo Page, 8 October 2015]

(b)    In 2016, the United Kingdom Home Office (UKHO) reported that the new government’s objective was to identify Tamil activists in the diaspora working for Tamil separatism and to destabilise the Sri Lankan state with the aim of preventing the resurgence of the LTTE (or similar organisations) and the revival of the civil war. There were four serious risk categories which included journalists and human rights activists who had criticised the government, individuals who had given evidence to the Lessons Learned and Reconciliation Commission implicating Sri Lankan security forces, armed forces or authorities in alleged war crimes, those who were or were perceived to be a threat to a single state, and persons whose names appeared on a “stop” list accessible at the airport, being those against whom there was an extant court order or arrest warrant: D[37].

15    At D[38], the IAA went on to say (footnote inserted, emphasis added):

38.    The UKHO assessed that a person being of Tamil ethnicity would not in itself warrant international protection. Neither would being a person who evidences past membership or connection to the LTTE unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport. As noted above, the ‘stop’ list comprises those against whom there is an extant court order or arrest warrant. [UKHO, “Country Information and Guidance. Sri Lanka: Tamil separatism (version 3.0)”, 01 August 2016, at pp 5-6, 9-10] There are no claims, and there is no evidence before me that the applicant has engaged in any activities either in Sri Lanka or elsewhere that may bring him to the adverse attention of the Sri Lankan authorities for any reason, including those noted above. There is no evidence and I am satisfied that he is not subject to any court orders or arrest warrants, and that he will not appear on a ‘stop’ list at the airport.

16    The IAA considered information to which DJG17’s agent referred at the interview with the delegate and drew its conclusion as to whether DJG17 was at risk as a Tamil male at D[39]-[41] as follows (footnotes omitted):

39.    I have considered the information referred to by the applicant’s agent at the interview. The applicant points to this as evidence that Tamils remain at risk of arrest, detention, mistreatment and torture. The cited information notes reports of arbitrary arrests and detention of Tamils suspected of links to the LTTE, as well as persons who are human rights defenders, family members of the disappeared, involved in Tamil separatism or LTTE resurgence, critics of the government and other activists. There were also reports of harassment and threats made against people calling for accountability for human rights violations and those who were making or have made reports or complaints to the UN.

40.    I have found above that the applicant will not be imputed with any adverse political profile either personally or as a result of this family association. I have also noted that there are no claims, and there is no evidence before me that the applicant has or intends to engage in any protests, truth-seeking or commemoration activities in relation to any family members. There are no claims, and there is no evidence before me that the applicant has or intends to be involved in any other activities that may bring him to the adverse attention of the authorities.

41.    I am satisfied that the situation for Tamils in Sri Lanka has improved significantly and continues to do so. There is nothing in the referred information that indicates the situation is stagnating or getting worse for Tamils in any area of Sri Lanka. I am satisfied that the new government is taking steps to address past discrimination and violence and that Tamils do not face a real chance of serious harm on the basis of ethnicity alone. I also take into account that the referred materials do not indicate that Tamil males face a real chance of serious harm on the basis of age, ethnicity and geographic location alone.

17    At D[44]-[52], the IAA considered whether there was a real chance that DJG17 would suffer serious harm if returned to Sri Lanka having departed Sri Lanka illegally and as a returned asylum seeker. It concluded that he would not on the basis of country information and his lack of an adverse profile.

18    The IAA found that there was no real chance of serious or significant harm to DJG17 if he were returned to Sri Lanka and Australia’s protection obligations under ss 36(2)(a) and 36(2A) of the Migration Act were therefore not engaged. The IAA affirmed the decision of the delegate not to grant DJG17 a SHEV.

APPLICATION TO THE FCCA

19    The second ground of review before the FCCA is set out at [3] above. At J[20], the FCCA Judge noted that counsel for DJG17 relied upon his written submissions and chose not to expand on them orally.

20    The FCCA Judge noted (at J[28] and [29]) that despite the way that the second ground was expressed, counsel for DJG17 submitted that:

(a)    The reasons for decision in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190; (2019) 272 FCR 513 (CBN18) at [59] had direct relevance to this matter. In CBN18 at [59], Stewart J said:

The short point is that where an asylum seeker has given different accounts and offers an explanation for why that is so, the explanation must be seriously and properly considered. It may be that it is unpersuasive, but in another case it might count decisively against an adverse credibility finding or the rejection of a particular account in favour of another.

(b)    In making determinations as to credibility, the IAA was required to engage in an “active intellectual process”. It was obliged to adopt a careful, fair and reasonable approach to assessing the credibility of DJG17 so as to avoid engaging in a “quest to disbelieve” and to avoid irrationality or legal unreasonableness in approaching that assessment. These submissions relied on the reasons for decision in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 (AVQ15) at [24] (Kenny, Griffiths and Mortimer JJ).

21    Counsel for DJG17 submitted to the FCCA Judge that there was no basis for the IAA to:

(a)    At D[13], accept that L died and his burnt body had been found but not accept that family members, including DJG17, would have been subject to suspicion. He contended that it is obvious that L’s death certificate was issued to evidence his death and not to certify whether a person was under “suspicion”: J[30]; or

(b)    At D[17], accept that DJG17 was detained and questioned in 2006 about his involvement in the LTTE and that his family paid a bribe for his release and not accept his account of the CID’s ongoing interest in him. Counsel submitted that DJG17 was simply incapable of leading evidence as to why the authorities would take an interest five years after S’s death nor could he lead evidence of what was occurring in someone else’s mind: J[31].

22    In relation to the IAA’s findings at D[23], counsel for DJG17 contended to the FCCA Judge that the finding that, if DJG17 was a person of historic or ongoing suspicion to the CID, he would not have been allowed to leave the IDP camp without further investigation or follow-up, was simply a failure to give genuine, realistic consideration to the claim actually advanced by DJG17: J[32]-[33].

23    In relation to the IAA’s finding at D[28] that if “the applicant had any sort of CID profile or file relating to suspected LTTE involvement … he would have been identified during the IDP screening process”, the FCCA Judge recorded (at J[33]-[34]) counsel for DJG17’s contentions that:

(a)    The reasoning was flawed because it assumed that the IDP screening process was flawless; and

(b)    The reasoning was contradicted by the finding that it was implausible that DJG17 would be identified by a CID officer “six years after detention in 2006” and yet be undetected by the screening process at the IDP camp.

24    At J[35], the FCCA Judge noted counsel for DJG17’s contentions that those findings of the IAA:

(a)    Were essential to DJG17’s claims being refused because they effectively form the basis for the finding that Sri Lankan authorities lacked ongoing interest in DJG17; and

(b)    Fail to give proper, genuine and realistic consideration to DJG17’s claims.

25    The FCCA Judge found as follows:

47.    Ground two is couched in terms of reliance on the judgement of Stewart J in CBN18. Properly understood, CBN18 is not an expression of new law, it is merely a variation of legal unreasonableness, or where the decision “lacks an evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 226 (“Li”) at [76]).

48.    The test for legal unreasonableness is stringent and will only arise in rare cases. Unreasonableness is not a means for challenging a decision, on the basis that the Court disagrees with the consideration of the matters or the evaluative judgement of the decision maker (see Li at [30] and [113]).

49.    There is nothing in the decision, which to the Court’s mind, constitutes a ‘quest to disbelieve’ on the part of the Authority, in terms of the applicant’s credibility. The Authority was prepared, at paragraph 14 of its decision, to accept the issues that the applicant had with dates, without drawing adverse inferences. As pointed out by Counsel for the first respondent, the Authority’s discussions of the various claims was detailed and it gave proper and adequate reasons for its findings. The fact that reasonable people may disagree with those findings, does not make them legally unreasonable. The Court cannot detect anywhere within the decision evidence of a ‘quest to disbelieve’. Many of the matters pointed to in the applicant’s submissions, are speculation. For example, it is suggested that the decision to release the applicant from the IDP camp, which the Authority found to be evidence of a lack of an adverse profile, may have been due to a “flawed screening process”. No evidence is offered as to this proposition.

50.    If the claim that the Authority was on a ‘quest to disbelieve’, amounts to a claim of bias, the Court does not accept that claim. There is no evidence before the Court that the Authority pre-judged the matter. Bias is a serious claim that requires evidence. No evidence of bias has been produced to this Court.

51.    At best, ground two asks the Court to engage in merits review, which the Court cannot do. No jurisdictional error is made out.

THE APPEAL

26    The Minister’s written submissions were prepared having regard to an amended notice of appeal containing two grounds and in which the second ground of appeal was expressed in exactly the same way as the second ground of the application for judicial review to the FCCA, see [3] above. The Minister’s written submissions were also prepared without the benefit of the applicant’s written submissions on the appeal as presented by senior counsel for DJG17.

27    On the day before the day set down for hearing the appeal, the appellant’s solicitors provided to chambers:

(a)    The appellant’s written submissions prepared by junior counsel. Those submissions contained arguments materially the same as the arguments advanced before the FCCA Judge in relation to both grounds of appeal; and

(b)    A draft further amended notice of appeal containing two grounds. The second ground is in the form of that set out at [2] above.

28    On the day of the hearing, senior counsel for the appellant appeared and told the Court that he had been instructed the day before the hearing. Senior counsel indicated that the first ground of the further amended notice of appeal was not pressed and sought leave to rely on the revised second ground. Counsel for the Minister indicated that there was no objection to that course and leave was granted to the further amended notice of appeal being filed with the first ground struck out.

DJG17’S SUBMISSIONS

29    Senior counsel for DJG17 noted that the written submissions filed on the appeal from [30] onwards addressed the second ground of appeal but said no more about their ongoing relevance to the appeal. Those submissions are essentially the same as those on which the appellant relied before the FCCA Judge which are summarised at [20]-[24] above. I note that senior counsel did not refer to the written submissions at [27]-[29] which relate to CBN18 at [54]-[59] and AVQ15 at [24]: see [20] above.

30    Senior counsel for DJG17’s orally submitted that it is illogical in the sense relevant to judicial review applications for the IAA to have concluded that DJG17 did not have a well-founded fear of persecution upon his return to Sri Lanka by reason of his perceived association with the LTTE in light of:

(a)    The IAA’s acceptance, at D[15], that DJG17 was forced to sign a document stating that his brother S was part of the LTTE before the authorities would release S’s body (release document). Accordingly, the IAA has accepted as a fact that there is a document which has been given to Sri Lankan authorities which states that a person related to DJG17 was part of the LTTE and that person was shot during a battle between the LTTE and government forces; and

(b)    The IAA’s acceptance, at D[17], that DJG17 was arrested and held in detention in 2006 for a period of time and subjected to harm and mistreatment before being released because his family had paid a bribe to a CID official. The IAA did not accept DJG17’s claims (recorded at D[16]) that he was asked about S’s role with the LTTE because DJG17 did not explain why the authorities would suddenly take an interest in S five years after his death. Senior counsel asked: how could DJG17 explain that?

31    Senior counsel then submitted that:

(a)    The IAA had therefore accepted two crucial facts: First, DJG17 had an official connection with the LTTE via the release document which he signed and gave to the authorities. Those authorities therefore had a record that DJG17 was a family member of someone linked to the LTTE. Second, in 2006, DJG17 was detained, tortured and only released after the payment of a bribe to a CID official;

(b)    While it is true that the IAA also did not accept DJG17’s claim that, in 2012, he was recognised by a CID officer involved in the 2006 events and detained (see [5(g)] above and D[26]-[30]), it does not matter that that claim was rejected. That is because the IAA failed to grapple with why the two crucial facts were not a sufficient connection to be a basis for a well-founded fear of persecution based on imputed political opinion if he were returned to Sri Lanka. That is particularly so in light of country information (recorded at DR[36] and [39]) which showed that Tamils with suspected links to the LTTE were subject to arbitrary arrest and detention. It is important to note that that country information appears to post-date the election of the Sirisena government in 2015;

(c)    The only apparent attempt at reconciling the two crucial facts to the IAA’s decision is by the IAA focussing on whether DJG17 had an adverse profile with the Sri Lankan authorities. This gave the “adverse profile” issue false equivalency with the “real chance of harm” in the statutory test. That is, the IAA found that DJG17 cannot have had an adverse profile with Sri Lankan authorities because he was not harmed in 2009-2010 when he was in the IDP camp;

(d)    That is classically circular reasoning and illogical. It is like saying “If you were really in trouble, you would be dead by now”. Such reasoning diverts attention from the predictive, risk-based analysis required by the statutory task of assessing whether, given the facts found by the IAA and the country information, there is a real risk of serious harm if DJG17 returned to Sri Lanka. While it is true that a person who clearly and definitely has an adverse security or criminal profile is likely to face a real chance of serious harm, that is not to say that only such a person does so;

(e)    The same logical error of focussing only on the here and now and not on DJG17’s prospective circumstances should he be returned to Sri Lanka is evident from the IAA’s consideration of the political changes to Sri Lanka after the elections in 2015 which were relatively recent at the time the IAA made its decision. The IAA’s consideration at D[34]-[41] contains no analysis or consideration of what DJG17’s position would be in the obviously possible situation where there was yet another change of government in yet another election. That the party in government changes is a certainty, but there was no predictive analysis undertaken by the IAA. In circumstances where the government has material in its possession which suggests that DJG17 is connected with the LTTE, the IAA needed, at least, to question whether there is some prospect of the peace established under the Sirisena government holding in the next election cycle;

(f)    In any event, the IAA did not deal adequately with the risk identified by the US State Department referred to at D[36] being the risk to “people with LTTE connections” in circumstances where the Sri Lankan government had in its possession a signed document by DJG17 stating that his brother was a LTTE fighter killed in a battle between the SLA and the LTTE. The IAA also accepted that DJG17 was tortured in 2006 by the CID and only escaped by paying a bribe, which means that he had eluded authorities. These loose ends have not been reconciled with the IAA’s conclusions; and

(g)    Indeed, although the IAA did not accept the claim that DJG17 was identified in 2012 by a CID officer whom he had escaped in 2006 and as a result was detained and tortured, that claim is not inherently implausible. It is not far-fetched or fanciful that a person in such a situation had a real chance of suffering serious harm if returned to Sri Lanka.

THE MINISTER’S SUBMISSIONS

32    The Minister’s written submissions contend that the appellant has not particularised the error that he says the FCCA Judge committed when assessing the same ground and the appeal should fail for the reasons given by the FCCA Judge.

33    Counsel for the Minister made the following oral submissions:

(a)    The sole ground of review does not reflect the way senior counsel for DJG17 articulated his arguments. Senior counsel’s arguments did not explain why one would come to the conclusion that the FCCA Judge failed to give genuine and realistic consideration to the arguments put on DJG17’s behalf in the Court below;

(b)    The way senior counsel explained the alleged legal unreasonableness was also “a bit different” to the way the matter was presented in the FCCA. Counsel said he would proceed on the basis that DJG17 is arguing that the IAA’s decision was legally unreasonable for the reasons articulated by senior counsel and address them;

(c)    DJG17’s arguments seek merits review and they do not satisfy the test for legal unreasonableness. A finding of legal unreasonableness would require a factual finding on which reasonable minds could not differ and would, in accordance with established Full Court authority, require some form of extreme illogicality;

(d)    The IAA did (at D[15]) accept that DJG17 was forced to sign a document which said that one of his brothers was connected to the LTTE. However, DJG17 says that S was not connected to the LTTE, so that is a false confession;

(e)    The IAA makes the point (at D[17]) that, in 2006, the LTTE was conducting increased military operations that led to the ceasefire breaking down and an escalation of conflict. The IAA therefore found it plausible that, in those circumstances, as a Tamil male in that area, DJG17 was detained and questioned about his involvement with the LTTE;

(f)    It is not circular reasoning or illogical for the IAA to reason as it did, having regard to country information (summarised at D[20]) that there was a very comprehensive screening process for finding LTTE members and those connected with the LTTE conducted by the SLA and CID both before and while people were in IDP camps. The IAA accepted (at D[22]) that DJG17 was interrogated from time to time in the IDP camp between April 2009 and April 2010. The IAA legitimately reasoned (at D[21]-[24]) that because DJG17 was not arrested or questioned about the events of 2006 while at the IDP camp nor was he separated from his family and removed to a detention camp, DJG17 was not of ongoing interest to the authorities, including arising out of the 2006 incident. The IAA reasoned that DJG17 would have been subject to more surveillance upon his release from the IDP camp had he been suspected of LTTE involvement. These were facts open to the IAA to find as the finder of fact;

(g)    DJG17 did not claim that he feared harm because there was a possibility of change of government in the future. There was nothing in the IAA’s findings that indicate that that was a matter that needed to be addressed specifically. On the IAA’s findings, the fact was that DJG17 was not suspected of LTTE involvement and was not of interest to the Sri Lankan authorities. That is conclusive against his claim to fear harm because he was suspected of LTTE involvement. Nothing in that reasoning turns on the incumbent political party in Sri Lanka; and

(h)    The FCCA Judge correctly reasoned, at J[49], that the IAA gave proper and adequate reasons for its findings and the fact that reasonable people might disagree about its conclusions does not make them legally unreasonable. To the extent relevant, the contention that the screening process might have been flawed was, as the FCCA Judge said, just speculation without any basis in the evidence.

DJG17’S SUBMISSIONS IN REPLY

34    Senior counsel for the appellant made the following submissions in reply:

(a)    The idea that a person might not have been detected in the screening process of an authoritarian regime is not fanciful or speculative; it is logical and obvious. The illogicality comes from an assumption, unproven by any sort of evidence, that one can assume 100% effectiveness and efficiency of those seeking to find people with LTTE connections in the period from 2006 to the time that DJG17 left Sri Lanka. That issue was never dealt with by the IAA;

(b)    The IAA did not find (at D[26]) that DJG17’s obligation to report weekly from the time he was released from the IDP camp in 2010 to the time he left Sri Lanka was an indication that he was of interest to the security forces, yet (at D[22]) the IAA noted that an obligation to report to security forces “on a daily or other regular basis” was imposed on those suspected of being LTTE. If reporting weekly is not an “other regular basis”, what does that mean?;

(c)    To say that illogicality is hard to establish does not answer the question: here there is an unreconciled tension between the IAA’s findings of fact and the decision made by the IAA; and

(d)    It is not to the point to say that no claim was made about the potential for change at a future election. If one is applying a forward-looking test, as the IAA is required to do, it follows that a recently elected government might lose in the next election cycle. A decision-maker projecting the future risk of harm to a person in returning to an environment should have regard to what may or may not happen if circumstances change. Ultimately, the change of government in 2015 is not a basis for reconciling the facts accepted by the IAA with its decision because there is US State Department country information which clearly accepts that a risk to people with LTTE connections post-dates that election.

CONSIDERATION

35    What emerges from senior counsel’s oral submissions is a clear focus on DJG17 having signed the release document. That focus is not present in DJG17’s written submissions to the FCCA Judge (as recorded in the FCCA Judge’s reasons) or on the appeal; indeed, there is no mention of the release document in DJG17’s written submissions on the appeal or in the FCCA Judge’s reasons when addressing the written submissions made (and there were no oral submissions). It would not be open to this Court to find that the FCCA Judge had given inadequate consideration to a matter not raised.

36    Argument on the appeal proceeded on the basis that the IAA did accept that DJG17 had signed the release document. The alleged illogicality was in the IAA’s decision that DJG17 did not have a well-founded fear of persecution in light of:

(a)    The IAA’s acceptance that the release document had been provided to the authorities who therefore had a record that DJG17 was a family member of someone linked to the LTTE; and

(b)    Its acceptance that, in 2006, DJG17 was detained, mistreated and questioned about whether he was involved with the LTTE, and only released after the payment of a bribe to a CID official.

37    In MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22], the Court (Besanko, Farrell and Thawley JJ) noted that a decision might be shown to be affected by jurisdictional error if:

(a)    No rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might [reasonably] reach different conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130], [131] (Crennan and Bell JJ);

(b)    There is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31; (2019) 268 FCR 33 at [45] (Perram, Farrell and Thawley JJ); or

(c)    There is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

38    Further, as Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [12].

Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

39    In my view, the IAA was entitled to assess whether there was a real chance of DJG17’s persecution (for the purposes of ss 5J and 36(2)(a) and of the Migration Act) or a real risk that DJG17 would suffer significant harm (for the purposes of s 36(2)(aa) and (2A) of the Migration Act) because of imputed connection to the LTTE by having regard to DJG17’s experiences in the IDP camp and his release from it with his family in light of the country information identified at D[20].

40    Having regard to the country information at D[20], which indicated that screening processes were multi-stage, undertaken both before and during the time in the camp, and by authorities which included the SLA and CID, there is no illogicality or legal unreasonableness in the IAA concluding that if DJG17 had been identified as being connected to the LTTE (including a familial connection), he would have been removed from the IDP camp instead of being allowed to stay there with his family and released with them, and he would have been monitored more closely upon his release leading to the findings made at D[23], D[24] and [28]: see [10] and [13] above. I note that DJG17 did not claim (in either of his PV or SHEV statements) to have been questioned about his brothers, his detention in 2006 or his release from that detention while at the IDP camp; he was questioned about whether he was an active member of the LTTE and his knowledge of LTTE logistics and membership.

41    Accordingly, I reject the following arguments:

(a)    The argument that the IAA’s reasoning can properly be characterised as circular or illogical;

(b)    The argument concerning the effectiveness of the screening processes employed before and during the time DJG17 was in the IDP camp. This argument cavils with the IAA’s fact-finding. The IAA had no obligation to consider whether the screening process was “100% effective”. The matters identified at D[20] suggest a thorough process undertaken by a number of Sri Lankan authorities, including both the SLA and CID. In my view it was open to the IAA to make the findings it did because this process tested the level of the authorities’ ongoing interest in DJG17 even if he did sign a release document and even if, as accepted by the IAA, he was detained, questioned and mistreated in 2006 on the basis that he was a Tamil male who resided in an area in which the LTTE had resumed operations;

(c)    The argument concerning the regularity of monitoring and the phrase “or other regular basis”. The IAA accepted that DJG17 was interrogated “a number of times” while at the IDP camp, but country information indicated that those suspected of being connected to the LTTE were questioned daily and removed from the camp: see D[21]. There is no suggestion that DJG17 was required to report “regularly” while at the IDP camp and he was not removed from the camp. D[24] and [26] address the situation after release, in which “regular” reporting was something to which those released from an IDP camp were subject and was not indicative of suspicion of being connected to the LTTE. In my view, there is no necessary inconsistency in these positions. The IAA’s reasons should not be read with an eye attuned to error, and this argument invites the Court to do;

(d)    The argument that the IAA was required to consider the situation following elections in the future. I accept the Minister’s submission summarised at [33(g)]. Further, in light of the country information cited at D[34]-[36], which referenced the inclusion of Tamils in significant roles in the country and other matters that led to the IAA forming the view that the situation of Tamils in Sri Lanka had “improved significantly and continues to do so” (see D[41], emphasis added), it cannot be said that the IAA did not look to the foreseeable future;

(e)    The argument that the change of government in 2015 is not a basis for reconciling facts accepted by the IAA because of US State Department country information that “clearly accepts that there was a risk to people with LTTE connections which post-dates that [2015] election”. I take this to be a reference to D[36]. This country information must be read in light of the later country information from the UKHO summarised at D[37] and [38] which sets out categories of people at risk into which the IAA found DJG17 did not fit since he had never claimed to be LTTE, pro-separatist, a journalist, interested in giving evidence concerning human rights abuses or someone for whom an arrest warrant had been issued. The IAA was entitled to rely on that later information to form its conclusions at D[39]-[41]; and

(f)    While I accept that it is not impossible that DJG17 would be identified in 2012 by a CID officer who had interrogated him in 2006 and as a result detained and tortured, it was open to the IAA to reason as it did at D[28] (see [13] above). I note that it gave three reasons for rejecting the appellant’s claim concerning his detention and mistreatment in 2012 and none of those reasons is illogical or legally unreasonable.

42    To the extent that DJG17 relies on the arguments put in the written submissions on appeal (which are the same as the arguments put to the FCCA Judge) set out at [20] to [24] above:

(a)    The IAA did not rely on the differences between the claims made in DJG17’s statement in connection with his PV application and those in his statement in connection with his SHEV application as a basis for doubting DJG17’s credibility. It attributed those differences to “genuine confusion”, not a lack of credibility: see D[14]. Accordingly the authorities he relied on (referred to at [20] above) were inapt to the circumstances of this case;

(b)    In relation to the death of L in 1990, there is no irrationality or unreasonableness in the IAA’s reasoning. While L’s death certificate indicated that he was “missing”, the IAA was prepared to accept that L’s body had been burnt, but as DJG17 did not advance a claim that either he or any member of his family was subject to suspicion or questioning in relation to L or his death, the IAA did not accept that L was suspected of being LTTE or that his death resulted from any such suspicion and therefore DJG17 did not have any adverse security profile arising from L’s death; and

(c)    I have already addressed above the claims relating to S and DJG17’s detention in 2006.

43    For the foregoing reasons, I do not accept that the IAA failed to give proper, genuine and realistic consideration to DJG17’s claims as necessary to be able to reach the required state of satisfaction as to whether DJG17 was a “refugee” for the purposes of s 36(2)(a) of the Migration Act or entitled to complementary protection under s 36(2)(aa). I do not accept that the FCCA Judge fell into appellable error at J[49] as claimed in the ground of appeal, particularly in light of the issues presented to his Honour in the written submissions made on DJG17’s behalf.

DISPOSITION

44    The appeal should be dismissed with costs.

Associate:

Dated:    22 February 2023