AGE15 v Minister for Immigration

[2015] FCCA 976

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGE15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 976

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Immigrants and Emigrants Act 1949 (Sri Lanka)
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958 ss.36(2)(aa), 424A, 424AA, 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: AGE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 782 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr T. Galvin
Minter Ellison

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 782 of 2015

AGE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 25 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa.  The application identifies the following grounds:

   The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424A.

   Particulars

   The Respondent did not raise/or put to me in writing part of parts of the adverse decision for me to comment in writing.

2. The application identifies under the first return date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court raised with the applicant that having looked at the application and the decision the Court was minded to consider dealing with the matter on a summary basis. In considering application of Court’s summary powers under s.17A (Federal Circuit Court Act 1999) and rule 13.10 (Federal Circuit Court Rules 2001 I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118. The applicant indicated that he hadn’t obtained his cassette and he wished to listen to the tape. The Court indicated that there was no utility in granting an adjournment if the proceedings are doomed to failure because there is no identified arguable jurisdictional error.

4. I am clearly satisfied that these proceedings for a Constitutional writ are doomed to failure and that there is no utility in granting an adjournment as it will only add to the costs to the parties and utilise limited Court time. There is no substance in relation to the ground identified in the application, and it is clear the Tribunal complied with ss.424AA at para.57, and clearly put the adverse material to the applicant at paras.42, 43, 49, 51, 53, and 57. The application fails to disclose an arguable jurisdictional error.

5. There is no basis for the allegation of non-compliance with s.424A of the Act, and it was not necessary for the Tribunal to identify to the applicant its conclusions in relation to the applicant’s credibility. It is clear that the adverse finding in respect of the applicant’s credibility were open on the material before the Tribunal. The application discloses no arguable jurisdictional error.

6. The applicant is a citizen of Sri Lanka and his claims were assessed on that basis.  The applicant applied for a visa on 20 November 2012 which the delegate refused to grant on 12 September 2013.  The applicant appeared before the Tribunal on 7 January 2015 and on 2 February 2015 to give evidence and present arguments and was assisted by an interpreter and also his registered migration agent.  The Tribunal carefully set out the relevant law and addressed the applicant’s claims in evidence in detail.  The Tribunal also identified the submissions received before the hearing and submissions received on 17 February 2015, and summarised the substance of those submissions and the applicant’s evidence in relation to the applicant’s claims. 

7. It is relevant that those submissions on 17 February 2015 clearly addressed the variation of the applicant’s evidence that the Tribunal had raised with the applicant between the evidence he had given in his statutory declaration and the evidence at his interview. This clearly satisfied s.424AA and therefor s.424A even if this credit conflict was information within s.424A. In these circumstances it is clear that there was no non-compliance with s.424A by the Tribunal by reason of the allegation in the application. In that regard, I note the Tribunal said:

   27. …That aspect was raised by the Tribunal during the hearing in relation to the applicant’s credibility. …

8. I also note that the applicant’s credibility was raised by the Tribunal as identified: 

   37. I said I was having difficulty understanding why [AA] would have an on going interest in the applicant given that the applicant was only operating as a local council member. The applicant did not appear to have a political profile that would warrant the degree of on going attention that he claimed [AA] had in him or that would warrant the applicant’s claim to fear harm from [AA]. The applicant had given some confusing evidence in relation to his involvement with the Muslim Congress party in that in his statutory declaration/statement he claimed (paragraph 8) “in about 2008 I stood for State assembly elections for the Muslim Congress but lost”. In a further statement to the Tribunal from the applicant dated 24 December 2014 the applicant (paragraph 5) said “in April 2010 I was two years into my term and decided to run for a seat in the Provincial Council. In Provincial Council elections parties field their own candidates and as well as allied Independents. I ran as an independent supportive of the Sri Lankan Muslim Congress (SLMC) “. The applicant was defeated at those elections. The applicant was asked to explain his claims in relation to the election. It was difficult to get a clear explanation from the applicant about the statements as to whether he had stood as a candidate for the Muslim Congress Party. It appears that the applicant did not have actual Muslim Congress direct candidate endorsement (he claimed he was offered that nomination but declined it and said that he was not really interested in that role) and participated in the election as an independent and was not elected. I suggested to the applicant that this did not suggest he had any significant political support or political profile and in those circumstances it was difficult to understand the applicant’s claims that [AA] saw the applicant as having some political significance and would have an ongoing interest in him in terms of threatening harm to the applicant. I raised the credibility of the applicant’s claims in this regard. The applicant responded by claiming that he had political influence within his town and that he was an important person in the town and that included his religious and administrative activities in relation to activities involving the various mosques in his area. I indicated that his political profile and activities and his failed attempt to be elected to a more senior political post did not support his claims in this regard. The applicant also claimed that he was really not interested in higher political office and that he was interested in serving his community locally at the council level. The applicant in those circumstances was not able to explain why he had stood for election for a higher political office. I note the written submissions that have been made on behalf of the applicant on this issue.

   …

   39. … The applicant repeatedly said that [AA] was now with the opposition but that he frequently changed Parties. I repeated the question on several occasions as I wished to ascertain the basis of his claim to fear harm from these political parties. The applicant in his statement stated 24 December 2014 (paragraph 11) had specifically referred to [AA] having joined the Sri Lanka Freedom party after he had been elected. The applicant eventually said that [AA] is now with the UPFA but he did not elaborate further in relation to the claim in the submissions.

   …

   42. At the second Tribunal hearing I raised with the applicant that in his entry interview (part C) he claimed that he had been in contact with the LTTE and claimed he supplied fish and other services and products to that organisation because they would “hassle me for vehicles or money”. He claimed in his entry interview that was the reason why the Army had detained and questioned and beaten him for eight days and it was on that occasion in apparently 1985 that he also claims that a friend of his was killed in detention at that time. I asked the applicant about his connection with the LTTE in the context of his claims in the entry interview. The applicant claimed that he had not had dealings with the LTTE but had supplied assistance to Tamil people in areas controlled by the LTTE. He was not able to explain the references in the entry interview to him assisting the LTTE in terms of providing fish ,goods and money to the LTTE. The applicant did claim more generally that at the time of the entry interview he was unsettled and “not in a good state of mind”.

   43. …The entry interview does refer to difficulties for the applicant caused by [AA] but the overall thrust in the entry interview document is that the applicant was suffering harm and harassment because of his support for [F] and because of his contact with the LTTE. In the entry interview document the applicant did not refer to [AA] having tried to recruit the applicant politically and the applicant having difficulties because of that issue. As indicated the entry interview document did contain material indicating that the applicant had faced difficulties because of [AA]. I noted that there was no mention in the applicant’s statutory declaration or further statement about [F] but the claims to fear harm in those documents were based around a fear of [AA]. I note the written submissions made on the applicant’s behalf on these issues.

   …

   47. I asked the applicant about his claims regarding the incidents that he referred to in his statutory declaration/statement where he claimed to have been attacked or threatened. He attributed all these events to people associated with [AA]. I asked him for details regarding the attack that he claimed was carried out on him and two of his friends after they had left the mosque. This event was said to have occurred in late 2011.The applicant claimed that he and his two friends had left the mosque when they are attacked by about 40 to 50 people. He claimed the attack lasted 4 to 5 minutes and that he was struck and cut on his head and that a plainclothes police officer was involved in the attack and that officer had a gun. He claimed that the gun was fired but he and his two friends had been able to run away and escape and hide in a house. The applicant only referred to the gun being fired after I specifically asked him about that aspect of his claim in his statutory declaration. Until that stage he had not mentioned that particular aspect. He claims he was eventually rescued by other Muslim Congress party members.

9. The Tribunal raised with the applicant its concerns as identified in para.45:

   45. The applicant also claimed in the entry interview document that his house had been attacked and damaged by people associated with [AA]. This arose in the context of the applicant’s claims regarding his connection with and support for [F] and his dealings with the LTTE. The applicant at the first Tribunal hearing had not referred to this incident but had simply claimed that people had knocked on his door one night but that he had not opened the door. The applicant also claimed in the entry interview document that he had gone into hiding on occasions to avoid people who he claimed were connected with [AA] but had not referred to that claim at the first Tribunal hearing. The applicant was asked at the second Tribunal hearing about his claims in the entry interview. He told the Tribunal that the political party that he belonged to had supported General [F] and that was his explanation for his comments in the entry interview. He also claimed that it was not his house and that had been attacked but a friend’s house and he also claimed that he had gone into hiding as indicated in the entry interview but could not recall any details surrounding that claim. The applicant was unable to explain the” EOMBI” reference in the entry interview document and appeared puzzled by that reference. The applicant was not able to explain a number of the extracts from the entry interview that I raised with him during the second Tribunal hearing and was unable to explain a number of those comments or explain the background to those comments or inconsistencies in relation to further interviews and statements. The applicant was asked a number of questions about [AA] and when the applicant claimed events happened and including the date of elections. He told the Tribunal on several occasions that he could not recall details about the dates of events or the actual events .The applicant said that he had difficulties with his memory and told the Tribunal he was not taking any medication for any medical conditions in relation to his memory but also said that he was unable to afford medication. The applicant offered those comments about his memory difficulties and his mental state as a possible explanation for his inability to recall details or explain inconsistencies in relation to a number of issues at the Tribunal hearing. I noted that the applicant had provided a further detailed statement to the Tribunal dated 24 December 2014 and that statement had included details and dates about incidents. I said in those circumstances I was having difficulty in accepting the applicant’s claim that he was having memory difficulties at the Tribunal hearing but apparently had been able to produce a reasonably detailed statement towards the end of December 2014.

   …

   49. … I said this raised credibility issues about the applicant’s claims regarding this incident. The applicant said that his migration agent had drafted the statement/ statutory declaration. His current migration agent told the Tribunal that the statement had been prepared by the applicant’s former migration agent.

   …

   51. …He did not appear to remember the threat to kill claim until I specifically raised that aspect with him. I again raised my concern about the applicant’s credibility at this stage given that a threat to kill appeared to me to be a serious issue that could reasonably expected to be remembered by the applicant if it had occurred. The applicant said he was worried about his family and claimed that he was telling the truth in relation to his claims. The applicant had also not referred in his evidence to his claim in his statutory declaration that a gun was fired during the incident after leaving the mosque until I raised it specifically and asked him about that claim.

10. It is clear in this regard that the Tribunal complied with s.424AA which satisfied the requirements of s.424A as identified:

    55. I raised with the applicant my concerns about his claims and his evidence as well as country information that was inconsistent with his claims to fear harm in Sri Lanka. I referred to aspects of the applicant’s inconsistent or vague evidence. I referred to the fact that the applicant had not recalled aspects of his claims during his evidence and that included the threat to kill claim in his statutory declaration. I referred to his evidence regarding the fact that he had withdrawn his complaint after police had arrested people who he claimed had been involved in the attack on him after the mosque incident and said that I thought his statement in his statutory declaration was misleading in relation to that issue. It suggested that the police had not been willing to pursue a case against the people who the applicant said had attacked him. I said I found it difficult to accept aspects of his evidence regarding his claims about the attack on him after attending the mosque. I said I found it difficult to accept the applicant’s claims that [AA] would have an interest in the applicant and that the applicant’s profile did not indicate or support the degree of interest from [AA] that the applicant claimed. I said that during the hearing it had been difficult to get information or details from the applicant about his claims and I also found it difficult to accept his explanation as to why he left Sri Lanka illegally. I said I also noted that notwithstanding the applicant's claim to have received a death threat he had stayed in his home area until he left to come to Australia. I said I had concerns about the applicant's overall credibility. I said that I also found the applicant’s evidence that he had declined police protection seemed inconsistent with his claims to fear harm and it appeared that the applicant’s evidence was he declined police protection because it was inconvenient for him in relation to the conduct of his business activities. I raised country information contained in the two DFAT Reports dated 3 October 2014 which were relevant to the applicant’s claims in relation to Sri Lanka. In

    summary I said that those reports indicated that the security situation in Sri Lanka had improved significantly since the end of the war in May 2009. I said that DFAT assesses that there are currently no official laws and policies that discriminate on the basis of ethnic extraction or language. I said that historically there had been barriers to Tamils in relation to education and employment but that Sri Lankan governments had made some efforts to address those ethnic and linguistic tensions. I said that while Tamils particularly in the north had a fear of monitoring, harassment, arrest and detention by security forces that the cessation of the forced registration of Tamils suggested that the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. I referred to the assessment that there was little discrimination on the basis of religion and no official laws and policies that discriminated on the basis of religion. I again referred to the assessment that there was a low risk of political or religious violence for Muslims in Sri Lanka. I referred to the 2012 UNHCR eligibility guidelines for people regarded at risk in Sri Lanka and noted the actual or perceived link to the LTTE as being the major risk factor. I noted that the applicant did not have that risk profile. I said that those guidelines do not identify Tamils as being at risk per se on the basis of ethnic extraction. I said it did not appear to me that the applicant had a profile that placed him at risk in Sri Lanka in accordance with those eligibility guidelines.

    56. I said in relation to the applicant having left Sri Lanka illegally that the country information in the DFAT country report indicates that if the applicant returns to Sri Lanka he will be subject to the same entry procedures and processing procedures as any other citizen regardless of ethnic extraction or religion. I said the Tribunal accepted that the applicant left Sri Lanka illegally. As a returnee the applicant will be questioned by Sri Lanka and immigration officials, State intelligence officers and the airport CID. Given that the applicant left Sri Lanka illegally the Tribunal accepted that he will be charged with offences in relation to having left illegally under the Immigrant and Emigrants Act. I also said that the information available to the Tribunal indicated that usually the most likely penalty for leaving Sri Lanka illegally would be a fine unless the person is suspected of facilitating or organising a people smuggling venture or has some other aspect or profile that might produce a different outcome. I said the Tribunal accepted that returnees charged with offences related to illegal departure may be held on remand for a period before being released on bail after having been taken before a magistrates court. I said in those circumstances it might be the case that a returnee would be held on remand in prison until they were taken before a court and the bail issue was determined. I said that depending on the availability of a magistrate it might be that a returnee might be held in detention for several days. I said that the Tribunal accepted that prison conditions in Sri Lanka are poor and that the jails are overcrowded and that poor conditions apply generally. I said if the applicant returned to Sri Lanka and was placed in custody on remand then that would occur because of the application of the non-discriminatory enforcement of a law of general application in terms of the enforcement of the Immigrants and Emigrants Act (and any relevant Criminal Procedure Act). The applicant responded by telling the Tribunal that the DFAT information comes from the Sri Lankan Government and the information in the DFAT reports does not represent what is actually happening in Sri Lanka.

    57. In accordance with s.424AAof the Act I referred the applicant to information available to the Tribunal in terms of the entry interview document which raised issues that the Tribunal considers would be a reason for affirming the decision under review. That information was that no mention had been made by the applicant in his statutory declaration or in his subsequent further statement of the General Fonseka claim or the LTTE claim that appeared in the entry interview as being reasons why he left Sri Lanka. As well the entry interview did not provide the same levels of claim of fearing harm from [AA] as appeared in the statutory declaration and the subsequent further statement. I said that the significance and relevance of that information is that it would be open to the Tribunal to find that the applicant had subsequently inflated his claims to fear harm from [AA] in an effort to strengthen his protection visa application. I said that the variations between the entry interview document in relation to the applicant’s claims as to why he left Sri Lanka were also relevant in relation to the Tribunal’s assessment of his overall credibility and that also went to an issue which the Tribunal could consider as being a reason to affirm the decision under review. I asked if the applicant wished to comment or respond to the information or if he would like to have additional time to comment or respond to the information. The applicant did not wish to respond or comment at the hearing but his representative said that he would like to provide written submissions in relation to the issues that I had raised and it was agreed that submissions could be provided to the Tribunal by close of business on 16 February 2015. As indicated elsewhere in these reasons those further submissions were received by the Tribunal.

1. The Tribunal carefully addressed the applicant’s claims and made the following adverse findings:

   59. I am unable to be satisfied as to the applicant’s claims that he has a well founded fear of persecution based on his claims to the Tribunal. I am also not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and to some aspects of his claims.

   60. I am not satisfied that the applicant has a well founded fear of persecution on the basis of his Tamil ethnic extraction or his Muslim Religion or on the basis that he would be perceived to have an actual or imputed political opinion that he supports the LTTE or is anti-the Sri Lankan government because he left illegally or is anti particular political parties or because of his membership of a particular social group of Tamil asylum seekers who fled Sri Lanka unlawfully.

   61. The evidence before the Tribunal is that the applicant claims to have had no contact or dealings with the LTTE notwithstanding the claims contained in the entry interview document. The applicant denied to the Tribunal that he had been involved in providing money or resources to the LTTE. He was unable to explain the references in the entry interview along those lines except to say that he had supplied resources to Tamil people but not the LTTE. He insisted that neither he or his family were members or supporters of the LTTE. The applicant before the Tribunal claimed to fear harm from [AA] and essentially claimed that his fear of harm and his difficulties in Sri Lanka were based around particular incidents involving conflict with [AA]. The applicant claimed that conflict arose out of him refusing to support [AA] in relation to local elections. The applicant explained that the references in the entry interview to General [F] were about the fact that the political party to which the applicant belonged had supported the General in the presidential elections. As indicated elsewhere in these reasons the entry interview document while acknowledging difficulties with [AA] had suggested that the applicant’s real reason or reasons for leaving Sri Lanka was because he had difficulties as a result of supporting the General and also because of his contact with the LTTE. In his statutory declaration and in his subsequent statement the applicant claimed that his reasons for leaving Sri Lanka and his fears of harm were based around his fear of [AA]. Apart from his general claim that he was not in a good state of mind when conducting the entry interview the applicant was not able to explain to the Tribunal why the references to the LTTE appeared in the entry interview document or why there were not more detailed claims about [AA] in that document and including the claim that [AA] had attempted to get the applicant to support him in elections and in political activities more generally. The variations and inconsistencies in the documents coupled with the applicant’s often very vague evidence inevitably cause concerns about the applicant’s credibility and the credibility of a number of his claims.

   62. The applicant told the Tribunal that he had memory difficulties when he was asked questions about details and dates relating to his claims. However the Tribunal noted that the applicant had been able to provide significant details about his claims in his statutory declaration and in his subsequent statement to the Tribunal which was dated 24 December 2014. Those statements do not indicate that the applicant had any difficulties providing dates and details on those occasions and the statement of 24 December 2014 is reasonably close in time to the Tribunal hearings. The applicant told the Tribunal he was not taking any medication for any memory difficulties. In all the circumstances the Tribunal is not satisfied that the applicant suffers from memory difficulties that cause inconsistencies or variations in his claims or his inability on occasions to provide detailed information about some aspects of his claims. The Tribunal believes that the applicant has credibility issues in relation to some aspects of his evidence and his claims. I note the written submissions made on the applicant's behalf about the entry interview process but I do not accept the applicant's credibility in relation to aspects of his claims.

   63. It was difficult on occasions to get details about the applicant’s claims to fear harm and the basis for those claims. As indicated elsewhere in these reasons the Tribunal raised a number of concerns about the applicant’s credibility and the credibility of his claims during the Tribunal hearings. On occasions he was both vague and inconsistent in relation to his claims. On other occasions the Tribunal believes that the applicant sought to exaggerate his claims. Reference has been made in these reasons to the applicant’s claim that the police had not pursued the prosecution of people who he claims had been involved in attacking him after he had left the mosque. However his evidence to the Tribunal was that he withdrew the complaint to the police and that is why the police discontinued the case rather than the police simply not pursuing the issues as was suggested in the applicant’s statutory declaration about this incident. He withdrew the complaint because he told the Tribunal it was costing him money to continue to be involved in those proceedings. The implied suggestion in the statutory declaration from the applicant’s statement was that he was not able to get effective state protection in relation to his claim about this incident. A similar situation arose in relation to the applicant’s implied claim in his statutory declaration that he had declined police protection because the police had not been able to stop the harassment from people associated with [AA]. The applicant’s evidence to the Tribunal was that continuing to report to the police as to his whereabouts in relation to police protection was a problem for him in conducting his business activities and that he essentially declined police protection because it was an impediment to him in relation to those business activities as well as indicating he did not believe the police were pursuing matters. Those examples indicate that in some respects the applicant has exaggerated some of his claims in his statutory declaration.

   64. The applicant was unable to explain to the Tribunal’s satisfaction why [AA] would continue to be involved in harassing the applicant as the applicant claims after [AA] was no longer a federal member of the Sri Lankan Parliament after losing an election in 2010. The applicant was also unable to explain in any credible way to the Tribunal why [AA] would be interested in harassing the applicant given the applicant’s relatively low political profile as a member of a local Council body. The applicant’s evidence about seeking a higher political office and who he was representing in that election also raised further concerns about inconsistencies in relation to the applicant’s evidence in relation to some aspects of his claims. The applicant maintained that he was an influential person in his local area both in terms of the Council and his mosque activities and that was the reason why [AA] continued to be interested in him and was seeking to do him harm because the applicant had refused to support [AA]. The applicant’s claims and evidence on these issues lacked credibility having regard to the overall evidence before the Tribunal and considered in the context of the applicant's overall political profile. The applicant's claims before the Tribunal and in written submissions made on his behalf claimed that he also feared harm from certain political parties and certain pro-government paramilitary groups and the authorities including the Sri Lankan army. The applicant's evidence about this issue and these claims was that it was related to his fear of [AA]. The applicant's evidence about these claims is referred to elsewhere in these reasons. His evidence as to why he feared harm from these political parties was vague and lacking in detail or substance and it essentially related to his claim to fear harm from [AA]. The Tribunal does not accept the applicant's claims that he has a wellfounded fear of harm based on his claimed to fear harm from [AA] and in those circumstances the Tribunal is not satisfied that the applicant has a well-founded fear of harm from the political parties, paramilitary groups or the Army as he claims.

   …

   66. The applicant’s evidence surrounding specific claims in his statutory declaration raise concerns about his credibility. The Tribunal has referred to the fact that the applicant did not initially mention his claim that [AA]’s people had threatened to kill him when he was giving evidence about harassment. It was only as the result of the Tribunal asking a specific question about that aspect of his statement that the applicant claimed that threat had been made. His evidence surrounding his claim that he and two of his colleagues were attacked after they left the mosque also raise concerns about the applicant’s credibility. Again the applicant did not mention that a gun was fired on that occasion until the Tribunal asked a specific question about that claim in his statement. As well the applicant claimed that he had been attacked by 40 to 50 people on that occasion but had been able to escape. When he was asked about that aspect he told the Tribunal that he had been able to run away and hide in a house. Given the numbers of people that he claimed were involved in the attack his evidence about his ability to escape and his evidence on the issue more generally did not seem credible in all the circumstances He claimed that he had spent four days in hospital as a result of that attack and he told the Tribunal that notwithstanding that the Tribunal had raised the availability or existence of any supporting medical evidence that he had not asked his wife to attempt to get that evidence or documentation despite the opportunity created by the adjourned first Tribunal hearing. The applicant also gave brief evidence about his claim that he had a bike rim thrown at him when he was riding his bike and that this incident was caused by [AA]’s people. His evidence regarding his claim that a note had been thrown into his house demanding that he should resign from politics or that he would be killed also raised credibility issues. The applicant claimed that it was the receipt of this note that caused him to decide to leave Sri Lanka rather than resign from politics. The applicant’s evidence about why he decided to leave (and at a practical level leave politics by leaving Sri Lanka) rather than resign from politics does not seem credible having regard to all the issues. Equally the applicant’s evidence about why he did not leave Sri Lanka legally also raise concerns about the applicant’s credibility. That aspect has been discussed earlier in these reasons.

   67. The Tribunal has considered the applicant's claims and the evidence provided by the applicant as well as the submissions filed on behalf of the applicant. The Tribunal has also considered the applicant's credibility in relation to his claims and his evidence. In those circumstances the Tribunal accepts that the applicant left Sri Lanka illegally and unlawfully. The Tribunal does not accept the applicant's claims that he left Sri Lanka because he claimed to fear harm from [AA]. The Tribunal does not accept the applicant's claims that he was threatened and harassed by people who worked with [AA] or from [AA]. The Tribunal accepts that the applicant was elected to a position in relation to local government or local council in his province in Sri Lanka. The Tribunal does not accept the applicant's claims surrounding the events that he said occurred to him and his friends after he left the mosque. The Tribunal does not accept for the reasons discussed elsewhere in these reasons that the applicant was attacked on that occasion or that the events surrounding the attack including the claimed assault or the firing of a gun occurred as claimed by the applicant. The Tribunal does not accept the applicant's claims that he spent four days in hospital after the attack. The Tribunal does not accept that supporters of [AA] threatened to kill the applicant as he claims. The Tribunal, has concerns about the applicant's claims that he was detained by the army in 1985 and that he saw a friend killed while he was in army detention for eight days. The applicant in his statutory declaration claimed this event occurred in 1985 and he told the Tribunal he thought this event occurred in 1985. In the entry interview document the applicant said these events occurred in 1988. The applicant claimed this event was a significant event in terms of his future involvement in local politics and the death of his friend was a significant event. In all those circumstances the Tribunal believes that it is reasonable to assume that the applicant would have been quite clear about his evidence surrounding the date and details of this claim to have been detained because the army believed that he was involved with the LTTE. In his statutory declaration he said his friend had been killed before his eyes but in his entry interview he said his friend died from his wounds. Having considered all the evidence the Tribunal, with some reservations, is prepared to accept the applicant's claim that he was detained in 1985 and interrogated and mistreated on that occasion and that his friend died. This incident was the only incident where the applicant claimed he had been detained and questioned and mistreated by Sri Lankan authorities. The applicant said that he had been detained and questioned because he was moving in and out of areas controlled by the LTTE. The Tribunal notes the written submissions made on the applicant's behalf in relation to this issue. As indicated the Tribunal does not accept the applicant's claims that he has memory difficulties and that the variations and inconsistencies in his evidence or his inability to be able to recall dates and details surrounding his claims are caused by memory problems.

   68. The Tribunal does not accept the applicant's claims that he had a tyre thrown at him by supporters of [AA] nor does it accept his claim that a note was thrown into his home threatening him with death unless he resigned from local government. The applicant's evidence about these issues together with the Tribunal's concerns about the applicant's credibility did not satisfy the Tribunal that these events occurred as he claimed. The applicant remained at his home for approximately two months after the claimed note incident had occurred. The applicant claimed he was careful during that period and travelled with a friend but he essentially continued to go about his activities both in terms of his local council and business activities. The Tribunal also considers that the applicant's evidence about why he left Sri Lanka rather than resign from politics lacked credibility having regard to all the circumstances and in the context of his decision to leave Sri Lanka. Equally his evidence about why he left Sri Lanka illegally also lacked credibility.

2. The Tribunal carefully identified the application of the Immigrants and Emigrants Act 1949 in relation to illegal departure as being a law of general application and a law that was not discriminatorily enforced as well as being a law for a legitimate purpose of border patrol. The Tribunal made adverse findings relevantly:

   70. The Tribunal accepts that because the applicant left Sri Lanka unlawfully and illegally that he will be charged with offences under the Immigrants and Emigrants Act of having left illegally should he return to Sri Lanka. In those circumstances the Tribunal accepts that the applicant would be remanded in custody pending a bail determination. The Tribunal accepts that the applicant may be remanded in custody for up to several days and including in prison conditions in Sri Lanka. The Tribunal accepts that prison conditions in Sri Lanka are poor. However the Tribunal is not satisfied that the applicant would be detained on remand for any significant period. The Tribunal accepts that any questioning or detention of the applicant would be the result of the non-discriminatory enforcement of a law or laws of general application in terms of the enforcement, for the legitimate state purpose of border control, of the Immigrants and Emigrants Act and any criminal procedure acts in relation to offences and not for any convention based reason. The applicant's profile together with the assessment of risk identified in the 2012 UNHCR eligibility guidelines do not indicate or suggest that the applicant would be singled out for persecutory harm or face a real chance of persecutory harm because he is a Tamil Muslim or for any other convention reason. The Tribunal does not believe that the imposition of a fine as the likely penalty for the applicant having left Sri Lanka illegally would expose the applicant to a real chance of persecutory harm.

   71. The DFAT country report of October 2014 ( and confirmed in the February report) assesses that there have been credible reports of torture carried out by Sri Lankan security forces but that it is difficult to determine the prevalence of torture with any accuracy. The country report notes that torture may be used to extract information or confessions from suspects. DFAT does not routinely monitor the situation of returnees but it assesses that the risk of torture or mistreatment for the great majority of returnees is low including for those suspected of having committed offences under the Immigrants and Emmigrants Act. The report further assesses that the risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes including people smuggling or terrorism offences. The applicant has no such profile in relation to the areas of risk associated with torture or mistreatment of returnees and in those circumstances I'm not satisfied as to the applicant's claim to have a well-founded fear of harm that he will be mistreated because he left Sri Lanka illegally and that he will be imputed with a political opinion of being pro LTTE or anti the Sri Lankan Government. The DFAT Thematic report of October 2014 in relation to people with links to the LTTE indicates that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE and the security forces focus on people of interest including those with suspected or real LTTE links or people who are believed to have separatist views or have engaged in criminal activities. The country information suggests that the risk profile for people in relation to anti-government views would increase for those people who are perceived to be supporting separatism or a revival of the LTTE. The applicant, on the evidence before the Tribunal, has no such profile. As well the DFAT country reports refer to a survey conducted on behalf of the Australian government by the development policy Centre at the Australian National University. That survey of people intending to leave Sri Lanka and travel to Australia "irregularly" indicated that the overwhelming majority of people who left Sri Lanka irregularly did so for economic opportunity. In those circumstances it is reasonable to assume that the Sri Lankan government would be aware of the economic reasons for people leaving Sri Lanka illegally rather than any imputed political opinion of being anti-the Sri Lankan government.

   72. The Tribunal has also considered the applicant's position if he engaged in future political activities should he return to Sri Lanka. The applicant told the Tribunal that he was only interested in pursuing political activities at the lower-level/local Council level and in his local community. As noted the applicant claims that he continued to carry out his council activities for about two months after he claimed he received a note threatening his life and before he came to Australia. The Tribunal has considered the evidence and the applicant's claims and in those circumstances the Tribunal is not satisfied nor does the evidence suggest that the applicant faces a real chance of serious harm if he returns to Sri Lanka either now or in the reasonably foreseeable future and decides to engage in political activities at the same level and in the same manner as he did previously. The Tribunal also notes in this context that the DFAT country report of February 2015 states that after the January 2015 presidential elections that a Muslim Congress Chief Minister has taken over in the Eastern Provincial Council.

   73. The Tribunal has considered the applicant's claims both individually and cumulatively and had regard to the evidence and submissions and the country information in relation to those claims. The Tribunal is not satisfied having regard to the applicant's claims on the evidence before the Tribunal together with country information that the applicant has a well-founded fear of persecution on the basis of his claims should he return to Sri Lanka either now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant has a real chance of persecutory harm based on his claims that he fears harm because he is a Tamil Muslim or because if he returns to Sri Lanka he would be imputed with a political opinion of being pro LTTE or anti the Sri Lanka government because he left illegally or because he would be returning as a failed asylum seeker who would be suspected of an imputed political opinion of being pro LTTE or anti the Sri Lanka government. The Tribunal is not satisfied that there is a real chance that the applicant will face persecutory harm on the basis of his membership of a particular social group of failed Tamil asylum seekers who left Sri Lanka illegally and applied for refugee status in Australia. The Tribunal does not believe that the applicant has a real chance of persecutory harm from [AA] based on his claim of his political opinion or that he faces a real chance of persecutory harm from certain political parties or pro-government paramilitary groups or Sri Lankan authorities and including the Army as he claims. The Tribunal has considered the written submissions provided on the applicant's behalf but is not satisfied that the applicant faces a real chance of serious harm for a Convention based reason if he returns to Sri Lanka either now or in the reasonably foreseeable future.

   74. The Tribunal accepts that the applicant faces arrest on charges of illegal departure if he returns to Sri Lanka. The Tribunal has considered whether that situation would put the applicant at a real risk of significant harm if he returned to Sri Lanka. The Tribunal has considered the definition of significant harm contained in s.36(2A) of the Act and the relevant definitions contained in s.5(1) of the Act. As indicated the Tribunal accepts that the applicant will be questioned and detained and charged with offences in relation to leaving Sri Lanka illegally. The DFAT country report of October 2014 indicates that the processing issues involved in the procedures for returnees involves interviewing the person and checking records and databases and that the questioning is undertaken by immigration officers and the State intelligence service and the airport CID. DFAT assesses that returnees are treated according to the standard procedures regardless of their ethnic extraction or religion. DFAT also assesses the detainees are not subject to mistreatment during the processing at the airport. The Tribunal accepts the prison conditions in Sri Lanka are poor. The Tribunal has considered the written submissions made on behalf of the applicant relating to these issues. The Tribunal is however not satisfied that the arrest and questioning of the applicant or the detention conditions, including overcrowding and poor conditions generally that the applicant would face in jail amount to significant harm as contemplated by s.36(2A) of the Act or that the infliction of such treatment as contemplated by that Section would be intentional as is required by the Migration Act.

   75. The Tribunal has considered the applicant's claims in terms of s.36(2)(aa) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature such as that would meet the definition of cruel and human treatment or punishment in s.5(1). The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

1. It was under those circumstances the Tribunal was not satisfied the applicant was a person with respect to whom that Australia had protection obligations under the Refugee Convention and was not satisfied that the applicant met the criterion under s.36(2)(a) or s.36(2)(aa). Those findings were clearly open. The application fails to disclose any arguable jurisdictional error. There is no utility in granting an adjournment for the reasons already given.

2. I am satisfied the applicant had a genuine hearing and that the review was conducted in accordance with the statutory regime.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015