ADO15 v Minister for Immigration & Anor

[2016] FCCA 88

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADO15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 88

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider the attributes of particular social groups claimed – whether the Tribunal dealt with all of the applicant’s claims – whether the Tribunal complied with Ministerial Direction No.56 – whether the Tribunal considered the applicant’s imprisonment upon return to Sri Lanka – whether the Tribunal put all issues in consideration to the applicant – whether the Tribunal misconstrued the meaning of significant harm under sub-s.36(2A) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 395, 476, 499

NABE vMinister for Immigration & Multicultural Affairs (No. 2) (2004) 144 FCR 1
SZSPE v Minister for Immigration & Border Protection [2014] FCA 267

SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64

Other materials cited:

UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012

Applicant: ADO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 607 of 2015

Judgment of: Judge Smith

Hearing date: 17 November 2015

Date of Last Submission: 17 November 2015

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Counsel for the First Respondent: Mr M. Cleary

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 607 of 2015

ADO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka. He is of Tamil ethnicity and claims that he has suffered difficulties in his home country for that reason in the past and is likely to suffer harm for that reason in the future. He also claims that he will be targeted because he is perceived to be a wealthy land owner who has resided overseas, who has sought asylum in Australia and left Sri Lanka unlawfully.

2. His application for a protection visa was based upon these claims but was rejected by a delegate of the Minister. On review of that decision, the Refugee Review Tribunal[1] also found that the applicant had not satisfied the criteria for the grant of a visa. The applicant now seeks judicial review of the Tribunal’s decision under s.476 of the Migration Act 1958 (Cth). In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error. He seeks to do so on several bases. For the reasons that follow, none of these bases succeeds and the application will be dismissed.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Background

1. The applicant lodged an application for a protection visa on 15 November 2012. The applicant claimed that he lived in a town in the North-East of Sri Lanka until 1990. He said that in 1986 his brother was gunned down by an Air Force helicopter at a time when the Sri Lankan forces killed innocent Tamils on suspicion of being Liberation Tigers of Tamil Eelam (LTTE) members or supporters.

2. He also claimed that, in 1990, another brother was taken away with a number of other Tamils on suspicion of being LTTE members and that he was still missing. At this time the applicant moved to a different area in order to take up employment with a cattle owner. That area was a former LTTE controlled area.

3. From that time, the applicant was compelled to provide assistance to the LTTE at various times as well as having to undergo self-defence training with the LTTE. He was then assigned to the LTTE’s food preparation team and required to assist with the preparation of food for the LTTE fighters.

4. When the Sri Lankan army eventually captured the area in which the applicant was living, he was held along with other LTTE cadres for a period of approximately 15 days. While in captivity he was beaten severely and tortured.

5. In 2006 the applicant claims that he joined the Tamil political organisation TNA (“Tamil National Alliance”) in the belief that it was the only remaining party that could protect him from the Sri Lankan authorities. He claimed that he was an active member of that party and was involved in various of its activities.

6. The applicant claimed that when the LTTE was defeated in 2009, the circumstances for Tamils deteriorated significantly and he decided to flee Sri Lanka in November 2009. However, the boat on which he was travelling was intercepted by the Sri Lankan Navy and he was sentenced to imprisonment for 56 days for unlawful departure from the country. When he was in jail the applicant claimed that he was beaten and tortured severely and accused of being an LTTE.

7. The applicant fled Sri Lanka for Australia and claimed that his wife had told him that members of the CID from Colombo had come in search of him and told her that he would be targeted if he returned.

8. On 30 January 2014 a delegate of the Minister decided to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision.

9. The applicant was represented by migration agents for the purposes of the review. Those agents sent written submissions and a statement by the applicant to the Tribunal in support of the review. In addition to the claims outlined above, those documents included a claim that the applicant feared harm for reason of being perceived to be wealthy. The applicant claimed that he would be perceived to be wealthy because he and his family owned a considerable amount of land.

10. The applicant was invited to and attended a hearing conducted by the Tribunal on 23 February 2015. The Tribunal made a decision on 27 February 2015 to affirm the decision of the delegate.

The Tribunal’s decision

1. The Tribunal accepted that the applicant’s brothers had been respectively killed and abducted but did not accept that those incidents, as tragic as they were, gave rise to any protection obligations.

2. The Tribunal also accepted that the applicant was detained in 2005 for 15 days and mistreated but not to the extent that he claimed. It further accepted that the applicant’s family were then detained in a government camp for 8 months and released.

3. The Tribunal then stated that it was not satisfied that the applicant had a profile that would give rise to real chance of any adverse attention should he return to Sri Lanka. The Tribunal then set out the following reasons for that conclusion.

4. First, although it accepted that the applicant was a member of the TNA (an alliance of Tamil political parties), it found that his engagement with that alliance was menial and low profile, such that it would not have caused him to be of any ongoing interest to the Sri Lankan authorities or anyone else.

5. Secondly, it rejected as false the applicant’s claim that his wife had told him that CID officers had come looking for him.

6. Thirdly, on the basis of the country information before the Tribunal, it was not satisfied that a Tamil male with the applicant’s profile, namely someone who had never been seriously suspected of LTTE engagement, who had never had any LTTE engagement and none of his family members were held in a rehabilitation at the end of the war would come to the adverse attention of the Sri Lankan authorities or anyone else.

7. Fourthly, in respect of the applicant’s claim to fear harm on account of being perceived to be a wealthy Tamil, the Tribunal found:

   [37] … First, the Refugees Convention nexus requires persons to be harmed for something perceived about them. In this case, it is claimed the applicant would be targeted in an effort to obtain illegal profit. Based on the country information considered, I am not satisfied that a Refugees Convention nexus exists. Second, the country information considered in the sources cited herein, has not satisfied me that wealthy Tamil’s [sic] have a real chance of being targeted in the east of Sri Lanka. The country information indicates that hundreds of thousands of Tamils go overseas to work and many remit monies and many have assets in Sri Lanka (at least that is what is often claimed to the Tribunal). However, none of the country information in any of the sources cited herein has satisfied me that such persons have a real chance of even being “targeted” for that reason on return.

   (References omitted)

8. Fifthly, the Tribunal accepted that the applicant had been detained in 2009 having attempted to depart Sri Lanka illegally but did not accept that he was mistreated as severely as he claimed. The Tribunal then went on to consider whether the cumulative nature of the applicant’s history might cause him to be punished on return to Sri Lanka for having departed illegally. It noted that the applicant’s first detention was in late 2009 when the Sri Lankan authorities were robustly pursuing LTTE cadres and supporters, but was not satisfied that that remained the case. Further, even though the applicant breached his bail conditions in 2009, he remained unharmed and unquestioned. In those circumstances the Tribunal was not satisfied that the applicant’s previous detention after illegally departing Sri Lanka would substantially change his profile on return. The Tribunal also found that given that he lacked any material profile prior to leaving Sri Lanka in June 2012, the fact that his activity in Australia would not bring him to the adverse attention of anyone in Sri Lanka and the passing of time since the cessation of hostilities, the Tribunal was not satisfied that the applicant would be subject to a custodial sentence on return.

9. The Tribunal did accept that the applicant might be given an increased fine on return as a repeat offender. However, it was satisfied that the applicant would be able to pay such fine.

10. The Tribunal considered that the punishment for illegal departure was not discriminatory in any sense. It found that even if the applicant were subject to a brief period of detention, that it would not be beyond a few hours and that he would, like most persons, be granted bail on personal recognisance immediately by a magistrate. For those reasons the Tribunal did not accept that the applicant had a real chance of being subject to serious harm should he return to Sri Lanka.

11. The Tribunal rejected the claim that the applicant would be imputed with the profile of being an offshore Tamil separatist and also rejected the claim that he might be harmed as a result of being a failed asylum seeker.

12. For those reasons the Tribunal found that the applicant was not a person in respect of whom Australia has protection obligations and so did not satisfy the criterion in sub-ss.36(2)(a) or (b) of the Act.

13. The Tribunal then turned to the complementary protection criterion in sub-s.36(2)(aa) of the Act. First, it noted that it had to consider whether the material harm was “intentionally inflicted on” the applicant. Negligence or lack of resources, which the Tribunal considered to be the cause of the poor prison conditions, did not suffice. It found in this respect that there was no identifiable intention by the Sri Lankan government to cause such harm. It also relied on its earlier finding concerning the likelihood of the applicant getting a custodial sentence and being briefly detained to conclude that it was not satisfied that the applicant had a real risk of suffering significant harm on return to Sri Lanka.

14. It also found that while the applicant might suffer some possible harassment, this did not amount to significant harm and that there was no real risk of the applicant being arbitrarily deprived of life in Sri Lanka. For those reasons the Tribunal concluded that the applicant did not satisfy the complementary protection criterion and so affirmed the decision under review.

Consideration

1. The applicant relied on an amended application that was filed without leave. However, the first respondent did not object to the amendments and so I will deal with them. There are 6 grounds; however, at the hearing, Mr Kumar abandoned the third ground and sought to raise a new ground. I will deal with the issues that arise from that later in these reasons.

Ground 1

1. The first ground is that the Tribunal asked the wrong question or failed to consider the attributes of particular social groups claimed by the applicant. In his written submissions, Mr Kumar asserted that the Tribunal had failed to afford procedural fairness. The ground concerns the applicant’s claim that he feared harm in Sri Lanka for reasons of being perceived to be wealthy. It is important to understand, with some precision, how that claim was made in order to determine whether the Tribunal actually dealt with it.

2. The claim did not appear in the applicant’s statutory declaration accompanying his visa application. There, he claimed that he would face harm because he had fled the country illegally, he had claimed asylum in Australia, and had lived in an area previously controlled by the LTTE and for having assisted that group in the past. He also mentioned his involvement in a Tamil political party.

3. The claim about being perceived to be wealthy was first made by the applicant’s representative at an interview conducted by the delegate of the Minister. That claim was recorded as follows:

   At the close of the PV interview the Applicant’s IAAAS provider has also submitted that the Applicant faces persecution in Sri Lanka because he would be perceived to be wealthy.

4. There was no more detail than that to the claim and, in particular, nothing appears to have been said as to why the applicant might be perceived to be wealthy.

5. The delegate found that the applicant would not belong to any particular social group defined as those “perceived to be wealthy” and that, in any event, there was no real chance that he would be harmed for the wealth that he might have for criminal reasons.

6. In written submissions to the Tribunal, the applicant’s representatives gave more details in support of the claim, quoting the applicant as follows:

   My wife and I own 10 acres of land which was used previously to cultivate coconut. The land is situated in a jungle area in Vaharai (former LTTE controlled area in the eastern province). At present the land is not used for cultivation. The land is unoccupied and my family is afraid to travel to our land due to paramilitary and Sri Lankan authorities active in this area.

   My wife and I also own a further 14 acres of land (in addition to the 10 acres of land) which includes a house in the Vaharai area.

   The villagers in Vaharai are perceive [sic] my family to be wealthy Tamils in the Vaharai, as we have owned and continue to own a considerable amount of land.

   The fact that I am perceived to be wealthy places me at risk of being targeted by Tamil paramilitary groups who continue to abduct and extort money from wealthy Tamils in the eastern area. The Tamil paramilitary groups work closely with the Sri Lankan authorities, therefore it is not possible to report such incidents to the Sri Lankan police.

7. This statement was repeated in a document entitled “RRT Statement” that appears to have accompanied the submissions. The applicant’s agents argued in the submissions that the applicant was a member of a particular social group of Tamils who are perceived to be wealthy.

8. The Tribunal dealt with this claim at [37] of its reasons (see [19] above). The Tribunal did so in two ways:

   i)by finding that there was no Convention reason for any harm that the applicant might face from people who might try to extort money from him. It found that the reason for the harm was simply the obtaining of illegal profit; and

   ii)it found that there was no real chance that wealthy Tamils in the east of Sri Lanka would be targeted in any event.

   While there might be some argument about the first of these conclusions, the second one was clearly one of fact that conclusively dealt with the applicant’s claims as they were made.

9. The applicant now argues that the Tribunal failed to deal with the perception of wealth that might arise from the applicant having travelled overseas. There are two difficulties with that argument: first, it was not a claim that was made or one that arose on the material: NABE vMinister for Immigration & Multicultural Affairs (No. 2) (2004) 144 FCR 1. Secondly, but more importantly, the Tribunal did deal with that claim. The finding made by the Tribunal that wealthy Tamils had no real chance of being targeted covered any claim concerning wealth (or perception of wealth) regardless of its source. Further, the Tribunal specifically referred to the circumstances of Tamils who return from working overseas – the very issue that the applicant now says was not considered.

10. The first ground is rejected.

Ground 1A

1. Ground 1A in the amended application raises the same issues as the first ground and is rejected for the same reasons.

Ground 2

1. Ground 2 concerns the way in which the Tribunal dealt with the applicant’s claim to have been involved in the TNA.

2. Initially, the claim was simply that the applicant was an active member of the TNA and became involved in its activities to help and support it prior to elections and other political events. The delegate rejected this claim as a fabrication because the applicant revealed at the interview that he was unaware of the most rudimentary aspects of the alliance.

3. In his written submissions to the Tribunal, the applicant claimed that he had worked closely with the TNA MP Mr Yoheswaran and that he was at risk of being harmed by members of the Tamil paramilitary groups (presumably because of the work he had done).

4. At the Tribunal hearing the applicant gave evidence that, when he was released from the government camp in 2006, he sought refuge in the home of a local TNA politician. There, he lived with the politician, his sister and three boys, worked around the house cleaning, maintaining and gardening and assisted in various activities to assist the TNA. He was asked by the Tribunal whether anyone looking for him could have found him where he was living and agreed that that was the case.

5. The Tribunal dealt with this claim as follows:

   [29] At any rate, the Tribunal is not satisfied the applicant’s activities for the TNA, would give rise to a real chance he would come to the adverse attention of anyone in Sri Lanka. That is because I am satisfied his engagement with the TNA was menial and low profile; because I am satisfied if he was of any real interest to anyone, either the applicant or his family could have been subject to more harassment than claimed (and I am not satisfied that he was in hiding, or otherwise took any real steps to protect himself, when he lived with the politician in Balaithenai). Further, the Tribunal does not accept the applicant was subject to death threats, from time to time, or at all, in the last few years he was in Balaithenai. I am not satisfied his low profile would have caused him to be of any ongoing interest to the Sri Lankan authorities or anyone else.

   [30]Accordingly, the Tribunal does not accept the applicant has a real chance of being harmed in Sri Lanka due to his prior work freight TNA politician (or the TNA) in Balaithenai.

6. The applicant argues that the Tribunal ought to have considered, but did not, whether the applicant’s association with the TNA through the politician, together with other activities, would put him at risk.

7. This ground must be rejected. The Tribunal accepted that the applicant had lived with the politician and had had undertaken certain tasks of a political nature. The applicant’s evidence was that the fact that he was living with the politician was no secret to anybody who might wish to harm him. Thus, when it referred to the applicant’s “profile” it was referring to a combination of all of these things. The reference to “profile” was no more than a shorthand way of saying the things about the applicant that might associate him with a political opinion or, in other words, how he might be seen by other people.

1. It is important in this respect to recall that the applicant never expressly based his claim to fear harm simply on the fact that he lived with a politician and did housework for him. Rather, it was his consistent claim that his membership of, and involvement with the TNA party was what would bring him to the adverse attention of potential persecutors. This fact explains why the applicant’s connection to the politician did not receive any prominence in the Tribunal’s reasons. It did, however, include that connection in its consideration of the questions posed by the criteria for the grant of a protection visa and so did not err in the manner suggested by the applicant.

Ground 3

1. The third ground in the amended application was abandoned by the applicant at the hearing. Instead, he sought leave to argue a different ground that had been addressed in written submissions. The written submissions in this respect were somewhat unfocused. Doing the best I can, it appears that the following grounds are raised:

   a)the Tribunal failed to comply with Ministerial Direction 56;

   b)the Tribunal’s finding that the applicant would be held in remand for a few hours was not based on any evidence;

   c)the applicant was denied procedural fairness on the issue of brief detention in that that issue was not properly put to the applicant; and

   d)the Tribunal misconstrued the meaning of “significant harm” in sub-s.36(2A) of the Act.

   I will deal with them as Grounds 3A, 3B, 3C and 3D.

Ground 3A

1. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Subsection 499(2A) requires a person or body to comply with a direction made under s.499(1). There is no dispute that the Tribunal has functions and powers under the Act and that Ministerial Direction No.56 was made in accordance with s.499(1) of the Act. Thus, if the Tribunal fails to comply with that Direction it falls into jurisdictional error.

2. The question is whether the Tribunal failed to comply with the Direction.

3. The Direction was made by the then Minister for Immigration and Citizenship on 21 June 2013 and relevantly provides:

   2.In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.

   ‘PAM 3: Refugee and humanitarian - Complementary Protection Guidelines’

   ‘Pam 3: Refugee and humanitarian - Refugee Law Guidelines’

4. The first of the guidelines referred to in the Direction is relevant to these proceedings. In those guidelines, there is a section dealing with intentional infliction of pain or suffering which states:

   To meet the definition of torture, an act or omission must be intended to inflict severe pain or suffering. An act or omission which is not intended to cause pain or suffering but inadvertently did so, would not fall within the definition.

   In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.

5. The first point to note is that cl.2 of the Direction only requires the Tribunal to “take account of” the relevant guideline. It does not require the Tribunal to follow the guideline slavishly as though it were a statement of law. In this case, the Tribunal stated, at [6] that it was required to take the guideline into account. In light of that, it is clear that the Tribunal was at least cognisant of its obligation under s.499 of the Act. Thus, in my view, in order to succeed the applicant must show from the balance of the Tribunal’s reasons that, in spite of this cognizance, the Tribunal failed to have any regard to the guidelines.

6. The second point to note is that the particular paragraph in the guidelines relied upon by the applicant (the second paragraph quoted at [51] above) is very general in nature and application. The Direction does not say when it would be appropriate to make certain inferences, or when certain inferences must be drawn. Indeed, if it did it would probably be beyond the power in s.499(1) of the Act.

7. There is nothing in the Tribunal’s reasons to suggest that it did not “take account” of any part of PAM3. The ground is hopeless and I refuse leave to rely on it.

Ground 3B

1. The second new ground was that there was no evidence to support the Tribunal’s finding that the applicant would only be held briefly in remand. The applicant did no more than baldly state this proposition. He did not develop it in any way either in writing or orally. Further, it flies in the face of an extract from a report from the Department of Foreign Affairs and Trade that was set out in the Tribunal’s decision at [43]:

   … Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged are held at the nearby Negombo Prison.

2. I refuse leave to rely on this ground.

Ground 3C

1. The third new ground is that the conclusion about detention was not put properly to the applicant. The applicant did not tender a transcript of the hearing conducted by the Tribunal. This means that he could not establish to my satisfaction what was, or what was not put to the him at that hearing. Further, and in any event, the applicant was aware of the issue from the delegate’s decision. The delegate noted evidence to the effect that there can be a period of remand from “a few days to a fortnight while awaiting trial”.  This ground, too, is hopeless and I refuse leave to rely on it.

Ground 3D

1. Finally, the applicant argues that the Tribunal misunderstood what is meant in s.5 of the Act by the requirement that harm be intentionally inflicted in order to amount to significant harm. The argument is that the real question involved in determining whether harm is intentional is whether the authorities knew the probable consequences of their actions. This argument seeks to raise the controversy that was determined in this Court by the decision of Judge Driver in SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64. His Honour found that actual, subjective intention is required in order for the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment to be satisfied: SZTAL at [46] – [49]. That decision is subject to an appeal in the Federal Court. Although argument was heard some time ago, judgment has not yet been delivered. The Minister submitted that, if I were of the view that this case is indistinguishable from SZTAL, the proper course would be to reserve my decision until the Federal Court delivers judgment.

2. There are two reasons why I will not wait for that judgment to be delivered. First, the Tribunal found that negligence or lack of resources was the cause of the issue. In SZSPE v Minister for Immigration & Border Protection [2014] FCA 267 Yates J held, on appeal from a decision of this Court, that negligence was insufficient to satisfy the definition of “significant harm”. I am bound to follow that decision. Secondly, if this Court were to reserve every decision pending decisions of higher courts on similar issues it would be impossible for it to manage its caseload.

3. For those reasons, while I would grant leave to the applicant to rely on this argument, I reject the argument.

Ground 4

1. The fourth ground in the amended application involves the way in which the Tribunal dealt with the fact that the applicant had previously been convicted and sentenced for illegally departing Sri Lanka. The applicant argues both that the Tribunal failed to take into account that previous conviction in determining what might happen to him on return to Sri Lanka and that, in dealing with it, it made findings of fact that had no basis in the material before the evidence. It seems that the arguments must be made in the alternative. Both must be rejected.

2. The Tribunal accepted, at [42] of its reasons, that the applicant was detained at the end of 2009 for having attempted to depart Sri Lanka illegally. It then went on to consider, on the basis of that and other findings, what might occur to the applicant when he returned to Sri Lanka. In doing so, it specifically addressed the applicant’s submission that the cumulative nature of his history may cause him to be punished on return to Sri Lanka for having departed illegally: [43]. Given that this statement followed immediately after the Tribunal’s consideration of the earlier conviction, the Tribunal must be taken to have had in mind, and so gone on to consider, the earlier conviction as part of the applicant’s relevant history. That conclusion is fortified by the further reference, a few paragraphs later, to the earlier detention which was the result of the conviction: [50].

3. The first conclusion reached by the Tribunal in connection with the earlier detention was that it was not satisfied that the earlier conviction would substantially raise the applicant’s profile on return: [50]. The second conclusion was that the applicant might be given an increased fine on return as a repeat offender but that, given that the fine could be paid in instalments and the applicant’s claims to have been perceived as wealthy and to have funded his travel to Australia, he would be able to pay the fine: [51].

4. These two conclusions carried forward into the balance of the Tribunal’s reasons. At [65], the Tribunal refers to its consideration of the illegal departure (which included the first conviction for illegal departure) and concluded that there was no real chance that the applicant would be considered by the authorities as an ongoing threat.

5. In light of all these express findings it cannot be reasonably argued that the Tribunal failed to consider the impact of the applicant’s earlier conviction for illegal departure.

6. The alternative argument was that there was no evidence to support the Tribunal’s finding that the applicant’s multiple trips did not pose further risk to the applicant. The difficulty with the argument is that the Tribunal was not satisfied that the first illegal departure would have any impact that would amount to persecution or significant harm. The Tribunal does not have to have material that directly supports a lack of satisfaction about a particular matter. The applicant did not point to any evidence before the Tribunal that required it, as a matter of law, to be satisfied that the applicant would be treated differently on account of his past conviction. Indeed, he did not point to any evidence that even supported the proposition that he would be treated differently on account of his prior conviction. In those circumstances, the ground is misconceived and I reject it.

Ground 5

1. The fifth ground is that the Tribunal failed to assess the impact that the applicant’s involvement with the LTTE might have on the risk that he would be harmed on return to Sri Lanka. In particular, he argues that the Tribunal failed to consider whether he fell within UNHCR risk profile 4. This is a reference to part of a document published by the United Nations High Commissioner for Refugees on 21 December 2012 entitled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka.” Part of those guidelines suggested that persons suspected of certain links with the LTTE were at risk of suffering harm in Sri Lanka. It then set out 6 classes of person who might be suspected of those links. The fourth of those classes was:

   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.

2. The applicant’s representatives argued that the applicant fell within that class because he had undertaken self-defence training with the LTTE, had been involved in food preparation for LTTE fighters and came from an area formerly controlled by the LTTE.

3. The Tribunal considered this submission but rejected it in the following paragraph:

   [60]Though not nominated by the migration agent, it appears the most likely risk profile may be “4” above. Irrespective of this, I do not accept the applicant falls within any of the UNHCR risk profiles given I am satisfied he would have been subject to more harm and or harassment (than I am satisfied he was), if he was suspected of falling into one of the above categories. At any rate, the Tribunal does not accept the applicant falls within the UNHCR risk profiles.

4. The first sentence in this paragraph is wrong – the applicant’s adviser clearly identified class 4 as being relevant to the applicant by writing it in bold print. However, as the Tribunal went on to consider that class, the error made no difference.

5. The Minister argued that the Tribunal did not in fact find that the applicant had been trained by the LTTE or that he had been involved in food preparation for it. I do not accept that argument. The Tribunal referred at [23] of its reasons to the particular claim and to the fact that it had been rejected by the delegate. It then said:

   … At the hearing, the applicant’s evidence about his claimed forced service with the LTTE was also vague and confusing. His lack of recollection could be taken to be (in part) due to the length of time between the relevant incidents (in 2005/2006) and the Tribunal hearing (February 2015). Be that as it may, I do not propose to draw any adverse inference from this.

6. The Tribunal does not expressly refer to the claim again and there is nothing else in the Tribunal’s decision to suggest that it rejected the claim. In those circumstances, and given that the Tribunal did not draw any adverse inference from the way in which the applicant gave evidence and the fact that it did not make any findings at a greater level of generality, I conclude that it accepted the claims.

7. The question then is whether the Tribunal fell into jurisdictional error in finding that the applicant did not fit a particular profile that was relied on by him in submissions to the Tribunal. In my view it did not. The Tribunal’s findings in this regard were set out at [60] of its reasons (see [69] above). Although not elegantly expressed, it is clear that the Tribunal had two bases for its conclusion: first, if the applicant had fit the profile, it was likely that he would have come to some harm in the past as a result. As he had not suffered such harm, the Tribunal inferred that he did not have the particular profile. Secondly, the applicant simply did not fit the profile.

8. The reasoning in the first of these bases flirts with error. It can be wrong to reason from a finding that a person has not been harmed to the conclusion that he will not be harmed. However, I do not think that that was the Tribunal’s approach. Rather, it was assessing the likelihood of the applicant meeting a certain description on the basis of the way he had been treated. It will be recalled in this respect that the Tribunal had rejected the applicant’s claims to have been beaten and otherwise mistreated in the past whilst in custody. Thus, the circumstances were different to a person who had a particular characteristic but that had not yet been discovered by potential persecutors: cf. s.395.

9. The reason that this ground fails though, is the second basis for the Tribunal’s finding, namely, that the applicant simply did not fit the profile referred to in the UHNCR report. That was open to the Tribunal. The applicant never claimed to have sheltered or transported LTTE personnel, and nor did he claim to have supplied or transported goods for them. While minds could differ about whether someone forced to prepare food for LTTE fighters could fall within those descriptions, such a person does not necessarily do so. For that reason, it could not be said that the Tribunal’s decision was irrational or that it was not based on inferences or findings of fact that had no logical basis in the material before it.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  4 February 2016