Acb16 v Minister for Immigration
[2017] FCCA 1442
•7 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACB16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1442 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for protection visa – assertion Tribunal committed jurisdictional error by failing to ask the correct question and failing to apply the real chance test – Tribunal did not commit jurisdictional error in either regard – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 Migration Regulations 1994 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 |
| Applicant: | ACB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 50 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 19 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Hodges |
| Solicitors for the Applicant: | Hodges Legal |
| Counsel for the First Respondent: | Mr R White |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 11 January 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 50 of 2016
| ACB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Sri Lanka aged 27 years, having been born on 12 November 1989.
By Application filed in this Court on 11 January 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 7 December 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 16 September 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).
Background
The Applicant applied for a Protection visa on 31 December 2012. He had been intercepted at sea by Australian authorities as an unauthorised maritime arrival from Sri Lanka and had been transferred to Cocos Island on 8 August 2012. On 22 November 2012 he was released into the Australian community on a Bridging visa E (BVE).
In the Entry Interview conducted over two days on 13 and 19 September 2012 the Applicant claimed that he could not return to Sri Lanka as the government would be aware that he had come to Australia and that they would therefore torture him and potentially end his life.
In his Statutory Declaration dated 14 December 2012, which he provided as part of his Protection visa application, he made allegations concerning events which he claims led to him fleeing Sri Lanka and to his fear of returning there. He stated that on 19 July 2009 he was abducted by unknown persons and put in a white van (see further details in [9] below) and that in early 2012 while working in a bus he had a confrontation with six Tamil men who were members of the Karuna group. They would not pay their fares and threatened to shoot and kill him (see further details in [10] below). In [11] of his Statutory Declaration he claimed that he and his family were staunch supporters of the Tamil National Alliance (TNA). In particular in [23] he stated that two of his cousins had been members of the Liberation Tigers of Tamil Eelam (LTTE). One cousin had jointed the LTTE in 1995 and fled to the United Kingdom in 2007 and continued to reside there. The other cousin was killed in action some time in 2006. Although the Applicant stated that he was fortunate not to be targeted by the authorities, he believed that he was at risk of being harmed by the Sri Lankan authorities due to his family connection with LTTE fighters.
The Applicant also claimed to fear harm from the Sri Lankan authorities as a Tamil who had fled Sri Lanka illegally and sought asylum in Australia and to be at risk of harm from the members of the Karuna group involved in the alleged bus incident in 2012.
Relevant Criteria and Law for a Protection Visa
The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 at [34]-[41] as follows:
[34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:
A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...
[37] A person who is not a citizen of Australia is a “non-citizen”.
[38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).
[39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).
[40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.[41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].
Decision of the Delegate
By his Decision Record of 16 September 2013 the Delegate refused to grant the Applicant a Protection visa as he was not satisfied that Australia had protection obligations to the Applicant under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The Delegate in his Decision Record summarised the Applicant’s written claims for protection, including that he was of Tamil ethnicity and Hindu religion and his claim that on 19 July 2009 he was going to work on a bicycle when he was abducted by unknown persons in a white van, blindfolded and questioned about the whereabouts of a relative named Yogarasa. The men who had abducted him threatened to kill him if he did not tell the truth.
The Delegate also recited the Applicant’s written claim that some time in early 2012 he was working as a bus conductor and 6 Tamil-speaking men boarded the bus and refused to pay their fare. The Applicant threatened to report them for not paying their fare and they threatened to shoot and kill him. He reported all this to his employer and then resigned his job and remained at home, as he believed that he had come to the adverse attention of members of a Tamil paramilitary group. He then fled Sri Lanka in July 2012 and came to Australia.
The Delegate also considered the Applicant’s written claim that two of his cousins were members of the LTTE, with one fleeing to the United Kingdom in 2007 and the other being killed sometime in 2006. He stated that he believed he was at risk of harm from the Sri Lankan Authorities because of this family connection with LTTE fighters. He believed that he would be harmed by the Sri Lankan authorities as he was a Tamil who left Sri Lanka illegally and claimed asylum in Australia.
The Delegate explored and discussed the Applicant’s claims at an interview on 16 September 2013.
In his Decision Record the Delegate stated that he found significant inconsistencies in key aspects of the Applicant’s evidence and considered that the claim that he was abducted by some men in 2009 in a white van had been fabricated. He also found that the bus incident did not happen as claimed. The Delegate found that the Applicant himself had never been suspected of LTTE or anti-government involvement in the past and that he had not been of particular interest to the Sri Lankan authorities for any reason prior to his departure.
The Delegate was not satisfied that there was a real chance of the Applicant being persecuted for a Refugee Convention reason or that there was a real risk of the Applicant suffering significant harm under the complementary protection criterion were he to return to Sri Lanka.
Tribunal Hearing and Decision Record
The Applicant applied to the Tribunal on 19 September 2013 for review of the Delegate’s decision.
The Applicant appeared at a hearing before the Tribunal on 16 March 2015 with his registered migration agent to give evidence and present arguments.
At [23]-[37] of its Decision Record the Tribunal set out and recorded the Applicant’s claims for protection. At [32] it stated as follows:
The applicant stated that two of his cousins known as Balu and Sankar were members of the LTTE. Balu joined in 1995 and fled to the United Kingdom in 2007. Sankar was killed in action sometime in 2006. Although the applicant was not targeted by the authorities previously, he believed that he was at risk of being harmed by the Sri Lankan authorities in the future due to his family connections with LTTE fighters.
This paragraph is an almost exact reproduction of [23] of his Statutory Declaration, the text of which is extracted below at [24].
In the result, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a Protection visa.
The Tribunal was prepared to accept that the Applicant had relatives who were involved in the LTTE prior to the cessation of hostilities but was not satisfied that the Applicant’s claims were credible in their entirety. It pointed out a number of inconsistencies in the version of events given by the Applicant since the lodging of his Protection visa application. It was not satisfied that the Applicant was ever abducted by men in a white van in 2009 or that he had been blindfolded, beaten or questioned about his relatives’ involvement in the LTTE or any Tamil political party. It observed that the Applicant had not suggested that he had been subjected to any further threats or harm arising from either his cousins’ involvement in the LTTE or his relatives’ involvement with the TNA during the 3 year period between his alleged abduction on 19 July 2009 and his departure from Sri Lanka in July 2012.
Further, the Tribunal was not satisfied on the evidence that the bus incident in early 2012 involving members of the Karuna group actually occurred. In relation to the Applicant’s claim of fear due to his family connection with LTTE fighters, the Tribunal at [105]-[106] stated as follows:
[105]The Tribunal is prepared to accept that two of the applicant’s cousins had links with the LTTE and that the applicant’s relative, Yogarasa, and possibly his father, have links to, or are supporters of the TNA. The Tribunal is not satisfied that the applicant was or is a “staunch supporter” of the TNA but is prepared to accept that the applicant may have had some low level political involvement with the TNA by assisting Yogarasa to put up bill posters prior to 2009. The Tribunal is not satisfied, however, that these circumstances give rise to a real chance or risk of the applicant suffering serious or significant harm now or in the reasonably foreseeable future.
[106]The applicant has claimed that one of his cousins who was involved with the LTTE died in 2006 or 2007 and the other departed Sri Lanka for the United Kingdom around the same time. The applicant’s father has not been questioned or threatened in relation to any LTTE links since 2003. The applicant’s own evidence is that he was able to return from India in 2007, through the airport, without any difficulty. From that time until the applicant’s departure in 2012 the applicant lived or worked in his home area in Eastern Sri Lanka without ever being approached by the authorities or questioned about his political activities apart from being caught briefly in a general roundup in 2008 prior to the cessation of hostilities. In 2012, the applicant obtained a Sri Lankan passport apparently without difficulty. These circumstances all indicate to the Tribunal that the Sri Lankan authorities did not have any interest in the applicant and were not genuinely concerned about his LTTE or other political connections or any other personal attribute.
The Tribunal’s ultimate conclusion on the Applicant’s claims was expressed in [111] of its Decision Record:
The Tribunal is not satisfied on the information before it that the applicant will be singled out or treated any differently upon return to Sri Lanka because he is a young Tamil male, has departed Sri Lanka illegally and sought asylum in Australia or because of any other personal attribute, including his family's LTTE and political links. Given the Tribunal's findings above, the Tribunal is not satisfied that the applicant’s family’s past connections to the LTTE or their or the applicant's own political activities would expose the applicant to real chance or risk of serious or significant harm in the course of processing at the airport, whilst in remand, in the course of sentencing or at any time upon return to his home area, given that the Tribunal is not satisfied that these circumstances have caused him any difficulty in the past. The Tribunal is supported in making these findings by the country information from UNHCR and the United Kingdom indicating that the Sri Lankan authorities are interested in identifying those with material links to the LTTE or who pose a present destabilising threat. The Tribunal is not satisfied that there is a real chance or risk that the applicant would be charged with, or suspected of having committed, any criminal or terrorism related offence other than having departed illegally.
Grounds of Attack on Tribunal Decision in this Court
The Grounds in the Application filed in this Court on 11 January 2016 were confined by Mr Hodges, who appeared for the Applicant at the hearing, and are as follows:
Ground 1
The AAT committed jurisdictional error by failing to ask the correct question and exploring the claims put forward when applying the real chance test.
Particulars
(i)The AAT accepted that persons “more likely to be at risk of harm in Sri Lanka” were people who held “senior LTTE positions within the LTTE”, “LTTE cadres”, “fundraisers and propagandists” or people with family links to people who held such positions [79]. The tribunal accepted that two of the Applicant’s cousins had links to the LTTE while the Applicant’s father and another relative had links (to the LTTE) / are supporters of the TNA. The Tribunal failed to explore if any of the family members held positions in the LTTE [105].
(ii)Having accepted that the Applicant had familial connections to the LTTE [105] the Tribunal failed to consider the possibility of harm that could be caused to the Applicant by former LTTE cadres due to his familial connections to the LTTE [71].
Ground 2
The AAT committed jurisdictional error by applying a test higher than the real chance test.
Particulars
(i) The AAT accepted that persons “more likely to be at risk of harm in Sri Lanka” were people who held “senior LTTE positions within the LTTE”, “LTTE cadres”, “fundraisers and propagandists” or people with family links to people who held such positions [79]. “More likely” is not the test.
Consideration
Ground 1
Mr Hodges summarised his client’s primary submission as being that it was always his client’s claim that his two cousins were LTTE fighters or combatants but that the Tribunal had not properly assessed that claim or made findings or given reasons in relation to it. Rather, the Tribunal glossed it over by referring throughout its Decision Record to general descriptions such as “LTTE links” and “family connections”. Mr Hodges said that the thrust of his submissions was that while the Tribunal accepted that his client’s cousins had LTTE links, it did not make a finding as to the allegation that they were fighters or combatants.
The first thing to be said about this submission is that although the Applicant himself never expressly asserted as such that his two cousins were “LTTE fighters”, such was firmly implicit in his claim in this regard in [23] of his Statutory Declaration which said as follows:-
[23]I wish to state that two of my cousins (known as Balu and Sankar) were members of the LTTE. Balu joined the LTTE in 1995 and fled to the United Kingdom (UK) sometime in 2007 and has resided in the UK since. Sankar was killed in action sometime in 2006. Though I was fortunate not to have been targeted by the authorities I believe I am at risk of being harmed by the Sri Lankan authorities due to my family connection, with LTTE fighters.
In my view, a fair reading of this paragraph is to equate the two cousins with LTTE fighters or at the least as militarily active in the LTTE. After all, one brother was declared to have been killed in action some time in 2006 and the other to have “fled”. The Tribunal would certainly have been aware of the nature of the LTTE as a militant organisation prosecuting a secessionist insurgency within Sri Lanka. At [78] of its Decision Record the Tribunal referred to the civil war in Sri Lanka ending in 2009 and the LTTE being effectively destroyed. The Tribunal would have regarded the description “LTTE member” as carrying in itself an implication of militancy.
In any event, in its Decision Record at [32] (extracted at [17] above) the Tribunal recorded the Applicant’s claim concerning his fear of harm due to his family connections with LTTE fighters in almost precisely the same terms as the Applicant had stated in [23] of his Statutory Declaration.
At [50] of its Decision Record, the Tribunal recorded that it asked the Applicant about his cousins’ involvement with the LTTE. Again, the Applicant did not expressly state that the two cousins were “LTTE fighters”. That part of [50] relevant to this issue stated as follows:-
The applicant was asked about his cousins’ involvement with the LTTE. The applicant said that his father’s brother’s son was involved with the LTTE and, without his family's knowledge, travelled to the United Kingdom. The officer noted that the applicant's farther was last taken in 2003 but experienced no further difficulties and the applicant himself had no difficulties with the authorities whilst in Sri Lanka or upon return from India. The officer asked why, in these circumstances, the applicant continued to fear harm as a result of his cousin’s connections to the LTTE. The applicant responded that his wife’s father had died when she was two years old and he did not want his own child to be fatherless. The applicant said he would be shot and tortured.
The Tribunal returned to the Applicant’s links to the LTTE in [78]-[80] of its Decision Record. It noted that it had some doubts about the Applicant’s claim that the authorities in Sri Lanka would be interested in him because of his family’s links to the LTTE and further noted that the Applicant’s family members who were connected to the LTTE, namely the two cousins, “were gone by 2007”, one to the United Kingdom and the other killed. As stated at [25] above, the Tribunal further noted that the civil war in Sri Lanka had ended in 2009 and the LTTE had been effectively destroyed. Mr Hodges in his Written Submissions criticised the Tribunal’s reference to the two cousins being “gone by 2007” but I consider that criticism unfair. The Tribunal was merely observing and emphasising that by 2007 neither of the two cousins were even still in Sri Lanka, let alone actively involved with the LTTE, and that this lessened the likelihood of the Applicant being treated adversely in Sri Lanka if he returned there in the near future.
It was in this context that the Tribunal expressed its view at [105]-[106] of its Decision Record (extracted at [20] above) of the claim made by the Applicant in [23] of his Statutory Declaration. The Tribunal here deployed language of greater generality and inclusiveness by referring to the two cousins’ “links with the LTTE” and being “involved with the LTTE” without expressly referring to them, if this is what [23] of his Statutory Declaration was meant to assert, as being “LTTE fighters”. However, this does not indicate that the Tribunal had forgotten or overlooked the apparent assertion by the Applicant that his cousins were LTTE fighters. It also does not establish that the Tribunal breached the well-established principle requiring it to deal with the case raised by the material or evidence before it and that if it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ quoting Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at 1092 [24] per Gummow and Callinan JJ.
Rather, the Tribunal in this case found that whatever the link or involvement that the two cousins may have had with the LTTE in the past, it was not satisfied having regard to all the circumstances discussed in the Decision Record that the result was that there would be a real chance or risk that the Applicant would suffer serious or significant harm now or in the reasonably foreseeable future if he were to return to Sri Lanka.
In these circumstances it was not an essential legal requirement that the Tribunal make any specific or particular finding as to whether the two cousins were LTTE fighters or as to the precise role and nature of any fighting in which they may have been engaged.
It is also apt to remember that the decision of the Tribunal must be read fairly and as a whole, without a fine toothcomb seeking to identify error. As the Full Court of the Federal Court comprised of French J (as his Honour then was), Sackville and Hely JJ stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604-605 [46]-[47]:
[46]…The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
Similarly, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the plurality comprised of Brennan CJ, Toohey, McHugh and Gummow JJ stated as follows:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
(citation omitted.)
In my view Ground 1 fails. The Tribunal did not commit jurisdictional error by failing to ask the correct question or failing to explore and consider the claims put forward by the Applicant. Rather, it fully and comprehensively considered those claims. Further, at [16] of its Decision Record the Tribunal correctly identified the real chance test and correctly applied that test at [104]-[105], [111], and [113].
Ground 2
This Ground asserts jurisdictional error by the Tribunal with reference to [79] of its Decision Record and asserts that “More likely” is not the test.
The context to Ground 2 is that part of the country information considered by the Tribunal was the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Sri Lanka dated 21 December 2012 (UNHCR Report). Mr Hodges accepted both that it was appropriate for the Tribunal to have regard to the UNHCR Report and that it was the most recent report available to the Tribunal from the UNHCR. It was referred to at [79] of the Decision Record and again referred to and footnoted at [87]. The relevant part of the UNHCR Report for the purposes of Mr Hodges’ submission was page 27 which relevantly stated as follows:-
However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) 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;
2) Former LTTE combatants or “cadres”;
3) 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);
4) 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;
5) 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;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
(citation omitted.)
At [79] of the Decision Record the Tribunal stated:-
The Tribunal put to the applicant country information from the UNHCR about the categories of people more likely to be at risk of harm in Sri Lanka. In terms of links to the LTTE, those at risk were people who held senior positions within the LTTE, LTTE cadres, fundraisers and propagandists or people with family links to people in those sorts of positions. The Tribunal noted that it did not appear that the applicant fell within any of those categories. The applicant had no response.
The above paragraph of the Decision Record merely records and summarises that during the hearing before the Tribunal, it was put to the Applicant that certain categories of persons were more likely to be at risk of harm in Sri Lanka than others. It went on to refer to certain of the six categories listed on page 27 of the UNHCR Report extracted at [36] above. The Tribunal was not purporting to set out any test at all in [79], let alone a legal test.
In my view Ground 2 has no substance and accordingly fails.
Final Matter
At the end of the hearing Mr Hodges appeared to also submit that the Tribunal erred in not properly assessing “the current risk or the real chance of risk” to the Applicant in 2015 because it wrongly had regard to events that occurred between 2006 to 2012. This submission does not seem to have been encompassed within Grounds 1 and 2 but I agree with the submission in response of Mr White, who appeared for the Minister, to the effect that the Tribunal properly and reasonably considered the body of evidence before it, including the country information. As was stated by Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
To similar effect, the Full Court of the Federal Court of Australia comprised of Kenny, Griffiths and Mortimer JJ stated in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 443 [33] as follows:-
The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
Conclusion
For the reasons above, I cannot discern that the Tribunal committed any jurisdictional error and the Application must accordingly be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 7 July 2017
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