Federal Court of Australia

EGQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 225

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 19 July 2022, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made under Pt 7AA of the Migration Act 1958 (Cth) (Act) on 29 August 2017. The Authority had affirmed a decision of a delegate of the first respondent (the Minister) made on 29 June 2017 refusing to grant the appellant a safe haven enterprise visa (SHEV).

2    The delay between the decision of the Authority (on 29 August 2017) and the determination of the application for judicial review (on 19 July 2022) was inordinate.

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

4    For the reasons that follow, I consider that there is no error in the decision of the primary judge and I dismiss the appeal with costs.

Background

5    The appellant is a citizen of Sri Lanka. He arrived in Australia on 4 November 2012 as an unauthorised maritime arrival. He is now aged 42 years.

6    On 10 December 2015, the Minister lifted the statutory bar under s 46A(2) of the Act which allowed the appellant to apply for a protection visa. On 29 November 2016, the appellant applied for the visa and attached a statement which included his claims for protection. On 29 June 2017, the Minister’s delegate made a decision to refuse the visa application. On 11 July 2017, the delegate’s decision was referred to the Authority for review under Pt 7AA of the Act. On 29 August 2017, the Authority made a decision affirming the delegate’s decision and provided a statement of reasons for that decision (Reasons).

7    The Authority summarised the appellant’s claims for protection as follows (Reasons [8]):

The applicant’s claims are set out in a statement attached to the SHEV application, and can be summarised as follows:

•    The applicant and his family were displaced during the war. His home village of Masar was under the control of the LTTE prior to 2009.

•    The applicant’s elder brother was forcibly recruited into the LTTE in 1990, and his elder sister was forcibly recruited in 1995.

•    The applicant’s sister was killed in 1998. His brother died in 2009.

•    The applicant studied to be an electrician as university education was difficult for Tamils to obtain. He worked in Qatar as an electrician for two years from 2006.

•    Upon the applicant’s return, his mother arranged for him to be married so that he was not targeted by the LTTE as a single person.

•    The applicant’s parents were forced to move into a refugee camp in 2009. After they were released, the EPDP and the CID monitored the family. The EPDP would spy on individuals and pass on messages to the CID. The applicant was taken into custody and questioned.

•    The CID and police came at regular intervals to the auto stand, where the applicant was a driver. They would block his way, and not pay him if they hired his rickshaw. His livelihood was destroyed. The EPDP also used to observe his movements.

•    The applicant used to move between Masar and Vavuniya to avoid attention. He also travelled to India two or three times.

•    The CID and EPDP were not aware that the applicant’s brother had died in 2009. The applicant resembled him, and he was suspected of being his brother. As a result, he continued to face questioning from the army.

•    The applicant’s wife’s brother-in-law was the person in charge of the Vavuniya district for SRI-TELO. He was an informant and this caused unrest in the family. The applicant had to sell his rickshaw in 2011. The unrest led to the applicant being separated from his wife in 2013 after his arrival in Australia. His ex-wife has entered into a relationship with someone who has links with the CID, and they are out to take revenge on him.

•    The applicant’s parents received demands for money on the basis that the applicant was living overseas.

•    Tamils are being discriminated against.

8    The Authority also noted the following matters arising from the SHEV interview conducted with the appellant:

(a)    The interviewer asked whether the appellant’s siblings were currently experiencing any problems and the appellant responded that they were still interrogated and questioned but they had not been imprisoned, beaten, tortured, charged with any crimes or sent to a rehabilitation camp (Reasons [10]).

(b)    The appellant stated that, prior to his departure from Sri Lanka, he was questioned and threatened but he was not beaten, tortured or detained (Reasons [13]).

9    The Authority considered the appellant’s claims to fear harm if returned to Sri Lanka arising from a number of circumstances. For the purposes of this appeal, it is only necessary to consider the Authority’s reasons and findings in respect of the following circumstances:

(a)    imputed association with the Liberation Tigers of Tamil Eelam (LTTE);

(b)    illegal departure from Sri Lanka; and

(c)    returning to Sri Lanka as a failed asylum seeker.

10    In respect of the appellant’s claim for protection as a refugee (pursuant to s 36(2)(a) of the Act), the Authority concluded that:

(a)    the appellant would not be identified as a person with close family links to former LTTE combatants if he returned to Sri Lanka (Reasons [26]); and

(b)    the appellant would not face a real chance of serious harm from the Sri Lankan authorities due to any of the above circumstances or those circumstances considered cumulatively (Reasons [28], [47], [51] and [52]).

11    The Authority reached the same conclusions in respect of the complementary protection criteria in s 36(2)(aa) (Reasons [57] and [59]).

12    On 22 September 2017, the appellant lodged an application in the then Federal Circuit Court, seeking judicial review of the Authority’s decision under s 476 of the Act. On 4 April 2022, the appellant filed an amended application. Subject to various exceptions (which are not presently applicable), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

13    On 19 July 2022, the primary judge published a judgment concluding that the appellant had not demonstrated jurisdictional error in the Authority’s decision and made orders dismissing the application for judicial review and published her Honour’s reasons.

14    On 12 August 2022, the appellant filed a notice of appeal stating three grounds of appeal and a number of particulars to each ground. By his written submissions, the appellant notified the Court that he only pressed particulars (b) and (c) to ground 1 and particular (d) to ground 2. The relevant grounds and particulars repeat grounds of review that were advanced before the primary judge. The appellant does not contend that the primary judge erred with respect to any statement of legal principle. Rather, the appellant contends that the primary judge erred in failing to find that the Authority had erred in the manner for which the appellant contends.

Grounds of appeal

15    The appellant’s grounds of appeal are interrelated and it is convenient to address them collectively.

16    By particular (b) of ground 1, the appellant contends as follows:

The Authority did not consider with an actual intellectual engagement whether there was a real chance the appellant may suffer serious harm or significant harm while in detention by reason of being in detention under the control of the police or other authorities, whether by assault or torture or intentional harm. This was a necessary question, given the material before the Authority relating to torture and the abuse of human rights in Sri Lanka.

17    By particular (c) of ground 1, the appellant contends as follows:

Further or in the alternative to Particular (b) to his [sic] Ground, the Authority did not consider whether the combination of the examination of the applicant on his future return to Sri Lanka by Intelligence and by CID, the applicant's family links to the LTTE, and his return to Sri Lanka as an illegal emigrant and failed asylum seeker, may cause him to have a real chance that he may suffer serious harm or significant harm while in detention, whether by a longer period in detention, or by assault or torture or other intentional harm. This was a necessary question, given the material before the Authority relating to torture and the abuse of human rights in Sri Lanka.

18    The above contentions, made under ground 1 of the appeal, are based on the well-established principle that there will be jurisdictional error if a decision-maker fails to consider a claim propounded by an applicant, as discussed in cases such as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. Recently, in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417, the majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) summarised the necessary requirement to consider an applicant’s claims in the context of representations to the Minister to revoke the cancellation of a visa made under s 501CA of the Act (at [24]-[27], citations omitted):

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26    Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker's reasons discloses that the decision maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

19    The above principles were not in dispute on the appeal.

20    By particular (d) of ground 2, the appellant contends as follows:

Having found that the applicant had two siblings who had been fighting for the LTTE, the Authority was unreasonable in not accepting that the applicant may be perceived as having close family links to the LTTE.

21    This contention, made under ground 2 of the appeal, was based on the principle of legal unreasonableness as explained by the High Court in Minister for Immigration v Li (2013) 249 CLR 332. The Minister submitted that there is some debate whether unreasonableness principles (separately from irrationality) apply to evaluative fact finding (as here), as distinct from discretionary decision-making. In that regard, the Minister referred to the statement of McKerracher and Griffiths JJ in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at [21] that alleged errors as to evaluative fact finding are properly analysed through illogicality/irrationality principles, and not through the application of unreasonableness principles. However, the Minister also noted that, in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644, Gordon J rejected a submission to that effect (at [42]-[43]). In BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532, Murphy and O’Bryan JJ discussed the issue and the authorities that stood against the proposition (at [27]-[35]), but it was unnecessary to resolve the issue in that case. In the present case, the issue was not pressed by the Minister. The resolution of the appeal does not turn on that issue.

Appellant’s submissions

22    The appellant’s arguments can be stated in relatively short terms. The appellant argued that he had claimed to fear harm upon being returned to Sri Lanka because he faced the prospect of detention in prison and there was a real chance of suffering torture while in prison. There was a real risk of detention in prison because of the facts (either singularly or cumulatively) that:

(a)    the appellant had departed Sri Lanka unlawfully (in breach of Sri Lanka’s Immigrants and Emigrants Act 1949);

(b)    the appellant was returning as a failed asylum seeker; and

(c)    two of the appellant’s siblings (now deceased) had been recruited into the LTTE and there was a real risk that the appellant would be perceived to be linked to the LTTE.

23    The appellant argued that the Authority had failed to consider those claims “with an active intellectual engagement” (ground 1) and that the Authority’s conclusion that the appellant would not be identified as a person with close family links to former LTTE combatants was legally unreasonable (ground 2).

24    The appellant submitted that the Authority did consider what might happen to him as a returned illegal emigrant and failed asylum seeker, but in doing so made only general references to “country information”, apart from its references to the Australian Commonwealth Department of Foreign Affairs and Trade (DFAT) country information report for Sri Lanka dated 24 January 2017. The appellant argued that the Authority considered that the “process or penalties” on return as an illegal emigrant would not amount to serious harm, but did not give any statement in its reasons about any risk of harm to the appellant during any period in detention – although the Authority accepted that he might be held in detention – including during a short time in prison.

25    The appellant placed reliance on the DFAT report which contained the following information with respect to the risk of torture by Sri Lankan military, security and police forces:

TORTURE

4.12    A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).

4.13    … DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.

4.14    …

4.15    DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.

4.16    In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.

4.17    …

4.18    DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.

4.19    DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.

4.20    Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.

Torture and mistreatment of returnees

4.21    DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.

4.22    Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.

26    The appellant also relied on an article published by The Guardian newspaper on 24 July 2017 concerning a report by a UN special rapporteur, Ben Emmerson QC, following a visit to Sri Lanka (which article was before the Authority). According to the article, Mr Emmerson reported that: “[t]he use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds" and that "[s]ince the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the state's well-oiled torture apparatus”.

27    In relation to departing Sri Lanka illegally, the DFAT report recorded that, under ss 34 and 45(1)(b) of the Sri Lankan Immigrants and Emigrants Act 1949, it is an offence to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). The DFAT report further stated:

5.17    … In practice, penalties are applied on a discretionary basis and most cases result in the issuance of a fine and not imprisonment.

5.18    Returnees who departed Sri Lanka irregularly by boat are generally considered to have committed an offence under the I&E Act. …

Exit and Entry Procedures

5.19    Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department. These agencies check travel documents and identity information against the immigration databases, intelligence databases and the records of outstanding criminal matters. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo may meet charter flights carrying involuntary returnees. DIBP has observed that processing returnees at the airport can take several hours, primarily due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed. Individuals who return to Sri Lanka voluntarily and are eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.

5.20    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during processing at the airport.

Offences under the Immigrants and Emigrants Act

5.21    Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. At the earliest available opportunity after investigations are completed, the individual would be transported by police to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The Magistrate then makes a determination as to the next steps for each individual. Those who have been arrested can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.

5.22    According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards departing illegally in the future. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lankan rupees / AUD 2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor.

28    In relation to perceived links with the LTTE, the DFAT report stated:

Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)

3.32    The most recent UNHCR Eligibility Guidelines for Sri Lanka (December 2012) note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:

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

•    former LTTE combatants or ‘cadres’;

•    former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);

•    former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

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

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

29    The DFAT report discussed the treatment of each of the above categories. In relation to persons with family links to former LTTE members, the report stated:

Family members

3.47     DFAT is aware of but cannot verify reports where close relatives claim to have been arrested and detained because of their family connections with former LTTE members. DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring.

30    The appellant submitted that the material before the Authority squarely raised the question whether the Appellant might suffer ill treatment as a person detained, but the Authority did not consider that question as required by law.

31    The appellant further submitted that the Authority did not consider whether the combination of (i) the examination of the appellant by the Sri Lankan authorities upon his return, (ii) the appellant's family links to the LTTE, and (iii) his return to Sri Lanka as an illegal emigrant and failed asylum seeker, may cause him to have a real chance of suffering serious harm or significant harm while in detention, whether by a longer period in detention or by assault or torture or other intentional harm. The appellant argued that while the Authority stated that it had considered the appellant’s claims cumulatively (Reasons [52]), the Authority’s consideration was insufficient to satisfy the legal requirement.

32    In relation to the appellant’s claim that there was a real risk that the appellant would be perceived as having close family links to the LTTE, the appellant submitted that the Authority had accepted that two of the appellant’s siblings were LTTE fighter who had been killed during the civil war. The appellant argued that while the Authority did refer to the fact that the Sri Lankan authorities know of the involvement of the appellant’s siblings in the LTTE, and of their deaths, and the interval of time as a reason why the link would no longer cause a risk to the appellant, this did not take account of the fact that the appellant would be returning, after an interval of then five years, and would be investigated afresh by the intelligence services on return, who would then freshly discover that the appellant was the brother of two former LTTE fighters. The appellant submitted that even if he was not of interest at the time he left Sri Lanka, and his family had been left undisturbed, the fresh investigation on return may be a trigger for suspicion.

Consideration

33    It is convenient to address ground 2 before ground 1. In my view, the primary judge was correct to reject that ground of appeal. The Authority’s reasoning was not unreasonable, illogical or irrational.

34    The Authority had regard to the following facts and circumstances:

(a)    The Authority accepted that the appellant’s sister was forcibly recruited into the LTTE in 1995 and died in 1998 and that the appellant’s brother was forcibly recruited into the LTTE in 1990 and died in 2009 (Reasons [18]).

(b)    The Authority found that the Sri Lankan authorities are aware of his brother’s death (given the existence of a death certificate) (Reasons [20]).

(c)    While, in the past, the appellant and other members of his family have been questioned and threatened by the CID, army and/or EPDP, the applicant and members of his family have not been beaten, tortured or detained by the authorities (Reasons [22]).

(d)    The appellant’s family is not currently being monitored by the Sri Lankan authorities (Reasons 24]).

35    Based on those facts and circumstances, and the matters stated in the DFAT report (and having considered The Guardian article), the Authority reached the following conclusions for the following reasons:

26    I do not accept that the applicant would be identified as a person with close family links to former LTTE combatants if he returned to Sri Lanka. While the applicant’s brother and sister were former LTTE combatants, they have been dead for 19 years in the case of the sister and eight years in the case of the brother. I have previously found that these deaths are known to the authorities. The fact that the applicant’s brother and sister are deceased suggests that their LTTE activities, and the applicant’s links to them, would no longer be the subject of concern by the Sri Lankan authorities.

27    Given my findings relating to the absence of past harm to the applicant, and in light of the information contained in the DFAT report, I consider there to be only a remote and therefore not a real chance the applicant will face serious harm at the hands of the CID, army and/or EPDP now or in the reasonably foreseeable future if he returns to Sri Lanka. I am also mindful that the CID, army and/or EPDP did not take the opportunity to subject the applicant to serious harm in the three year period between the end of the war in 2009 and the applicant’s departure from Sri Lanka in 2012, and have not subjected the applicant’s family to such harm up until the present. I have considered the report from The Guardian provided by the applicant. However, I consider the DFAT report to be more reliable, noting that the DFAT report is consistent with the other country information in the referred material including from the US Department of State and the UK Home Office.

28    In summary, I am not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion due to his Tamil ethnicity, his deceased brother and sister’s involvement with the LTTE and/or his residence in a former LTTE controlled area. I reach that conclusion having regard to the information that there has been a significant decrease in the monitoring and harassment of Tamils, and that the applicant does not fall within any of the categories of person identified by the UNHCR as needing protection. The country information in the referred material indicates that conditions for Tamils have materially changed in the five years since the applicant left Sri Lanka.

36    In my view, the foregoing reasoning is not unreasonable, illogical or irrational. The conclusions were open to the Authority on the material before it. To the extent the issue was raised on the appeal, I discern no error in the Authority’s application of the “real chance” test as stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

37    In my view, the primary judge was also correct to reject ground 1. The Authority’s Reasons demonstrate that it read, identified, understood and evaluated the appellant’s representations. The appellant’s criticisms of the Reasons can properly be seen as a disagreement with the Authority’s evaluation and an invitation to the Court to substitute its own evaluation. That is not permissible.

38    Having addressed the question whether there was a real risk that the appellant would be perceived to be linked to the LTTE, the Authority considered a number of other claims made by the appellant and then addressed the claims concerning illegal departure from Sri Lanka and returning as a failed asylum seeker.

39    In relation to illegal departure, the Authority accepted that the appellant departed Sri Lanka without a passport and, for that reason, had committed an offence under the Sri Lankan Immigrants and Emigrants Act 1949 (Reasons [41]). The Authority then summarised the DFAT report information concerning the consequences that would flow to a person in the appellant’s circumstances. The appellant did not contend that the summary was inaccurate. On the basis of that information, the Authority concluded as follows (citation omitted):

45    On return to Sri Lanka, I find the applicant would likely be charged and fined under the IAEA and then released. In the event that the applicant elected to plead not guilty to the offence under the IAEA, he would either be granted bail on personal surety or a family member. There is no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face any chance of imprisonment, but it is likely that he will be fined. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face such a period of detention or imprisonment.

46     I note the country information indicates that while custodial sentences are not levelled against returnees, a person charged under the IAEA may, in some instances, be detained for several days pending an opportunity to appear before a magistrate. I note the Australian courts have confirmed that whether a loss of liberty amounts to serious harm involves a qualitative judgment, involving the assessment of matters of fact and degree – including an evaluation of the nature and gravity of that loss of liberty. I have considered whether a detention of several days would constitute serious harm. While I accept that conditions in Sri Lankan prisons are poor due to a lack of resources, overcrowding and poor sanitation, I find that any questioning and detention the applicant may experience would be brief and would not constitute serious harm as inexhaustibly defined in the Act.

40    The appellant’s complaint is to the effect that the Authority did not consider the risk that the appellant might be detained and tortured while in prison. I reject that complaint. It is clear that the Authority considered that claim in light of the available country information and reached the conclusion that there was no real prospect of that occurring. That is the import of the Authority’s conclusions at Reasons [45] and [46].

41    In relation to the appellant being a failed asylum seeker, the Authority accepted that the appellant would be so regarded upon return to Sri Lanka (Reasons [49]). Based on the information in the DFAT report, the Authority concluded that there is not a real chance that the appellant would be harmed for that reason (Reasons [49]). The appellant was critical of the brevity with which that issue was addressed in the Reasons, arguing that the brevity indicated that there had been insufficient consideration. I disagree. Having regard to the content of the DFAT report, the Reasons provide a sufficient basis for the Authority’s conclusion and demonstrate proper consideration of the claim.

42    As to a cumulative assessment of the appellant’s claims, the Authority expressed the following conclusion:

52    I have had regard to all of the evidence before me and I have considered the applicant’s claims individually and cumulatively, as well as considering the personal circumstances of the applicant. I am not satisfied the applicant has a well-founded fear of persecution for reason or combination of reasons of his race, religion, nationality, membership of a particular social group and/or political opinion now or in the reasonably foreseeable future, if he returns to Sri Lanka.

43    The appellant again criticised the brevity of that conclusion, arguing that it displayed insufficient consideration of the appellant’s claim cumulatively.

44    The Authority’s obligation to consider the claims advanced by the appellant extends to considering the claims cumulatively. That is, in considering the claims advanced, the Authority is obliged to consider whether the appellant may face a risk of harm by reason of a combination of, or the cumulative effect of, factors or circumstances arising from the claims. As explained by French J (as his Honour then was) in W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]:

It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant - Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan's case these were described, in the submissions put to Katz J, as "risk factors". They were causative factors which might collectively engender the relevant risk. That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant's submissions. Authorities cited on behalf of the applicant did not cast much light on the submissions in this respect. The observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate "...consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were returned to China".

45    In many circumstances, though, a cumulative assessment will not produce any different result. There may be no interrelationship between the claims, or the rejection of the individual claims as a matter of fact will lead to a conclusion that there can be no “cumulative effect”: see for example Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32]-[34] (Gilmour, Markovic and O’Callaghan JJ). In my view, that is the basis of the Authority’s conclusion in the present matter. The Authority properly gave consideration to the appellant’s claims cumulatively, but found that the appellant did not have a well-founded fear of persecution. In my view, that conclusion followed logically from the Authority’s rejection of the appellant’s individual claims to fear harm by reason of the appellant's family links to the LTTE, and his return to Sri Lanka as an illegal emigrant and failed asylum seeker.

46    The Authority’s reasoning with respect to the complementary protection criteria was stated relatively briefly. That was because essentially the same issues arose in that context and the Authority recorded that it reached the same conclusions (see Reasons [57] and [59]). I reject the appellant’s argument that the Reasons evidenced inadequate consideration of the claims.

Conclusion

47    In my view, the grounds of appeal do not identify jurisdictional error on the part of the Authority, nor any error on the part of the primary judge. The appeal should be dismissed with costs.

Associate:

Dated:    16 March 2023