Agz15 v Minister for Immigration

[2019] FCCA 2147

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGZ15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2147

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it had failed to comply with s.424A of the Migration Act 1958, had based its decision on a misunderstanding of the evidence and had failed to consider an integer of his claims.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 424A, 474

AGZ15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 1068
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Applicant WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 236 FCR 593

Applicant: AGZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 842 of 2015

Judgment of: Judge Cameron

Hearing date: 21 June 2018

Date of Last Submission: 21 June 2018

Delivered at: Sydney

Delivered on: 6 August 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Rasan T. Selliah & Associates

Solicitors for the Respondents: Ms C. Hillary of DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 842 of 2015

AGZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived on Christmas Island by boat on 2 July 2012. On 26 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity and his imputed political opinion. On 31 July 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015. 

2. A previous decision of this Court dismissing the applicant’s application (AGZ15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 1068) was set aside by consent in the Federal Court of Australia on 21 July 2015 and the matter remitted to this Court to be heard again.

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  Based largely on that summary, relevant facts are set out below. 

Claims before the department

Entry Interview

1. In his Irregular Maritime Arrival Entry Interview on 30 August 2012, according to the written record of that interview signed by the applicant and the attending interpreter, the applicant relevantly said:

   a)in around 2010, his cousin had been taken but then released by the Criminal Investigation Department (“CID”);

   b)in 2012, the CID had taken him, the applicant, to a police station where he was beaten and interrogated about where his cousin had gone during an absence from Sri Lanka.  He told them that his cousin had been in London.  After this he was released but his cousin went missing;

   c)the CID had contacted his uncle’s house asking for a ransom in exchange for his cousin.  Although money was paid, his cousin had never been released and remained missing;

   d)he had seen his father’s shop on fire on his way home from work.  His father told him that a Sunni man set his shop on fire and had beaten him.  He, the applicant, then beat that man;

   e)a tax collector and “thug” had threatened to beat his mother and told his father that he would kill the applicant for beating up the Sunni man;

   f)although his mother lodged a complaint with the police, they did nothing to assist;

   g)through his work he had heard that there were boats that went to Australia.  After the incidents involving the CID, the Sunni man and the thuggish tax collector, he decided to leave Sri Lanka.

2. In his protection visa application and accompanying statement, the applicant claimed that:

   a)he was Tamil;

   b)he had been born in Colombo but lived in Chilaw until his departure for Australia in June 2012;

   c)about three years earlier his cousin had been arrested and detained by the police for four days.  His cousin had returned from the United Kingdom the previous year and the police interrogated him as to the source of his money;

   d)a week later his cousin was abducted by the CID.  The reason for his abduction was unknown but “random people” had since demanded money for his release.  Although the applicant’s parents had paid up to $20,000 in ransom, his cousin remained missing;

   e)about three months before his departure from Sri Lanka the CID came to his house and took him in for interrogation, detaining him for two days.  During that period he was questioned about his cousin.  He was arrested because his parents had refused the most recent request for money;

   f)about two weeks later the CID came to his house again.  They interrogated him, made him kneel on the floor, pointed guns at him and threatened to kill him.  After this incident, the applicant stayed at his aunt’s house and did not return to his home.  The CID came to his house about four times more but his mother told them that he had left Sri Lanka;

   g)one day, at about the same time as his arrest, he found his father’s shop on fire and his father being held by a Sinhalese man.  He handed the man over to the police but they released him without charge.  The Sinhalese man returned to the shop the following day and verbally abused his father because he was the only Tamil shop owner in the area.  The man and his friends began appearing at the shop every day, abusing his father and threatening to kill the applicant if they found him.  He (the applicant) did not return to the shop;

   h)he feared harm from the CID who continued to harass his family about his whereabouts.  He also feared harm from the Sinhalese man and his friends.  They targeted him because he was Tamil;

   i)the Sri Lankan government would not protect him as they too persecuted Tamils.  He could not relocate to another area because he would be recognised as a Tamil by the Sinhalese wherever he went; and

   j)he would be punished for applying for protection. 

3. In their written submissions to the delegate, the applicant’s representative submitted that individuals seemingly connected to his cousin’s abduction had asked for money in exchange for the release of his cousin.  Although a sum comparable to $20,000 was provided to them, his cousin was never released.

4. The applicant was interviewed by the Department on 17 April 2013 at which time he made the following additional claims:

   a)he did not know why his cousin had gone to the United Kingdom or what he had been doing there, other than that he was employed;

   b)he believed that his cousin had associated with a group of men who may have had links with the Liberation Tigers of Tamil Eelam (“LTTE”);

   c)at the time of his arrest, his cousin was suspected of smuggling people and weapons for the LTTE;

   d)following his cousin’s abduction, the applicant’s mother was asked for money for his release.  His family made three payments totalling about $20,000 but these failed to secure his freedom;

   e)about six months before his departure from Sri Lanka his mother received a further request for money which she refused to pay.  Three months later the applicant was taken in for questioning by the CID; and

   f)his father’s shop was the only Tamil shop in the area and stood on land wanted for development by Sinhalese, including the man who owned the adjoining property.  This man and his associate started the fire in his father’s shop and proceeded to harass him over the next three months.  The police refused to take any action to prevent the harassment.

5. In support of his application the applicant provided the Department with an undated letter from the Grama Niladhari’s office in Chilaw. The letter stated that the applicant’s mother had reported that her nephew had been abducted and that an unidentified person had begun to visit her home, questioning her about her son. The applicant’s mother also is also recorded as stating that her son had travelled to Australia in order to save his life.

6. Also provided was an undated letter from the Roman Catholic cathedral in Chilaw stating that the applicant’s family had joined that congregation.  The letter also stated that the applicant had faced adversity and oppression and had gone overseas in order to protect his life.

Claims before the Tribunal

1. The applicant appeared before the Tribunal on 15 January 2015 and gave the following evidence:

   a)some of his cousin’s associates had smuggled weapons for the LTTE.  Although his cousin had not been involved in these activities, there was “gossip” that his house was suited to this purpose because it was located close to the shore;

   b)regarding his family’s involvement in the situation, the applicant variously said that:

   i)his cousin’s parents and brothers contributed to the ransom but it was the applicant’s family who paid for most of it because his cousin used to send them money from London, allowing them to buy land and live well;

   ii)his mother became involved because she was the only person in Udappu who could speak Sinhala and was thus able to organise payments to the CID;

   iii)his mother had raised his cousin and for this reason she involved herself in the case; and

   iv)when the payments stopped the CID did not target his cousin’s father because he was old and could not walk. 

   c)after his mother refused to make further payments, the CID came to their house two or three times to threaten his family.  He was caught at the house twice and was taken away for further questioning on the first occasion.  He later said that he had been kicked and beaten by the officers;

   d)he spent the next three or fourth months prior to his departure from Sri Lanka generally doing nothing and passing the time.  He worked for a period, visited his house five or ten times, went to his aunt’s house and worked on the family’s coconut farm.  He later said that he moved frequently and had stayed with various relatives besides his aunt;  

   e)during this period the CID continued to come to his house in search of him; and

   f)his family were forced to sell their shop because the police refused to take action against the Sinhalese man who was harassing them.

2. On 30 January 2015 the Tribunal received a submission from the applicant’s adviser addressing matters which had been raised at the hearing.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. For the following reasons, the Tribunal was not satisfied of the credibility of the applicant’s claim that he had been targeted by the CID over suspected links with the LTTE arising out of his relationship with his cousin:

   a)the applicant’s claim to have had a close family and personal relationship with his cousin did not sit comfortably with the level of knowledge he displayed about his cousin at the hearing.  Notably, he was unable to provide his cousin’s full name and claimed to be unaware of the nature of his activities in the United Kingdom or how he made his money there, a subject which might reasonably be expected to have been of considerable interest to him.  He was also vague about how his cousin came to be suspected by the authorities of involvement with the LTTE and suggested – implausibly in the Tribunal’s view – that suspicions were raised because his cousin had chosen to build his house by the shore, thus facilitating the smuggling of weapons by sea; 

   b)the applicant also gave vague and confusing evidence about the circumstances in which the CID officers came to his house.  He initially suggested that they came to his house two or three times (and located him there twice) but later said, for the first time [sic], that the CID returned to his house many more times after this (but failed to find him there).  The applicant also claimed that he was questioned on the two occasions when he was located but provided only vague responses to the Tribunal when asked, a number of times, what had been said to him by the CID.  He also claimed for the first time that he had been beaten and kicked by the CID;

   c)his account of the ransom demands being directed to his parents appeared implausible.  In this regard:

   i)it was inconsistent with the information he had provided at his entry interview that only his cousin’s parents had paid the ransom;

   ii)when the inconsistency was put to the applicant, he adopted a new explanation to the effect that his cousin’s parents did not speak Sinhala and so had relied on the applicant’s mother, who did, to make all the arrangements with the CID;

   iii)the applicant’s explanation was also inconsistent with the information he had provided at his entry interview which was that the CID had, in fact, telephoned his cousin’s father to ask for a ransom; and

   iv)in the Tribunal’s view, if the money had been provided by his cousin’s family, it was implausible that the CID would target the applicant’s family after those payments stopped.  To the Tribunal’s mind, the applicant’s suggestion that the CID failed to take any action against his cousin’s father because of his age and inability to walk was also implausible;  

   d)equally implausible in the Tribunal’s view was the applicant’s claim that the CID had not been able to locate him over the course of some three or fourth months prior to his departure from Sri Lanka.  In this regard, when it was put to the applicant that his movements would have allowed the CID to locate him without much difficulty, the applicant amended his claim by saying that he had moved frequently and had not stayed with his aunt [sic] but had stayed with other relatives.  Further, when asked why the CID did not take any action against his father if, as claimed, they continued to question him about his whereabouts, the applicant suggested implausibly that the CID had refrained because his father was old and did not speak Sinhala.  Having considered the applicant’s claims and explanations, the Tribunal was satisfied that the CID or other authorities would have been able to locate the applicant had they any interest in doing so; and

   e)the Tribunal was not satisfied that it was plausible that the CID would have released the applicant’s cousin after four days if, as claimed, they had entertained any lasting conviction that he was involved in so grave a matter as weapons smuggling for the LTTE.  Similarly, the Tribunal was not satisfied that the CID would have released the applicant after each of the two occasions they questioned him if they had genuinely suspected him of being involved in the LTTE because of his relationship with his cousin.

3. Taking these matters together, the Tribunal was not satisfied of the credibility of the applicant’s claim that he had a cousin who was detained and subsequently abducted by the CID on suspicion of LTTE weapons smuggling. The Tribunal was not satisfied that the applicant’s family made ransom payments, that the applicant himself fell under suspicion of LTTE involvement or that he was, or would be, imputed with a political opinion supportive of the LTTE by reason of his relationship with his cousin or because his family refused to make further ransom payments.

4. Given its rejection of basic elements of the applicant’s account, the Tribunal was not satisfied of the credibility of the applicant’s claims in general.  In reaching this conclusion, the Tribunal considered the documents submitted by the applicant in support of his application but was not satisfied that any significant weight could be placed on them.

5. The Tribunal was not satisfied that the available information supported a conclusion that Tamils, young Tamil males, failed Tamil asylum seekers or Tamils who had lived in Australia for an extended period of time would, for those reasons, be imputed with a pro-LTTE political opinion.  Accordingly, it was not satisfied that the applicant’s ethnicity or his status as a failed asylum seeker would result in any such suspicions being cast upon him. 

6. The Tribunal also found that the available information did not support a conclusion that Sri Lankan citizens, including the applicant, who were ethnically Tamil faced a real chance of serious harm simply because of their ethnicity, or that associated factors such as being a young male or having geographic origins in the North or East of the country put them at greater risk of harm. 

7. The Tribunal accepted that Tamils in Sri Lanka continued to face some degree of societal discrimination but was not satisfied on the basis of the available information that this discrimination rose to the level of serious or significant harm.  The Tribunal was not satisfied that the applicant or his family had ever been targeted for harm by Sinhalese in his area as a result of complaining to police about this incident or that the applicant had been prevented, because of his Tamil ethnicity, from leading a normal life in Sri Lanka.

8. Having rejected his claims of past harm, the Tribunal did not accept that the applicant or his family had ever been targeted for harm because of their perceived wealth. 

9. Neither was the Tribunal satisfied that the applicant would face a real chance of serious harm because of his membership of the particular social group “young Tamil men who left Sri Lanka unlawfully and sought asylum in a western country”. While the Tribunal accepted that the applicant would be interviewed upon his arrival and would be subjected to security clearances by the authorities, it found that these were standardised procedures which applied to all returnees to Sri Lanka, regardless of their ethnicity. Further, as the applicant did not fall within any of the identified categories of persons who might be at risk of persecutory harm, the Tribunal was not satisfied that he would be singled out or targeted in a discriminatory fashion whilst undergoing these procedures.

10. The Tribunal also considered whether the applicant’s unlawful departure from Sri Lanka placed him at risk of serious harm, either in itself or because it would exacerbate any risk he might face for having sought asylum in Australia, but was not satisfied that such a risk existed. 

PROCEEDINGS IN THIS COURT

1. The amended application contained no ground 1 or particular 2(a).

2. In his amended application the applicant alleged:

   2.The Second Respondent (“the Tribunal”) engaged in jurisdictional error by failing to comply with s.424A of the Migration Act 1958 (Cth) in respect of information that the Tribunal considered would be part of the reason for affirming the decision under review.

   Particulars

   b.There was information in the entry interview that “CID would ring my uncle’s house and ask for money to release my cousin”.  As partly indicated by paragraph 21 (third dot point) of the Tribunal’s decision, this information was part of the reason for affirming the decision under review because it indicted [sic] that [his cousin’s] parents, and not the applicant and his parents, had experienced extortion demands and faced a further risk of extortion. The Tribunal did not comply with s.424A in respect of this information.

   3.According to the Tribunal, the applicant stated in his entry interview “that it was only [his cousin’s] parents who paid the money” to those who demanded money for [his cousin’s] release.  However, the applicant did not make this statement in his entry interview.  Instead, the applicant stated “CID then would ring my uncle’s house and ask for money to release my cousin”.  The Tribunal misunderstood the evidence in the course of making an adverse credibility finding against the applicant.  For the Tribunal to base an adverse credibility finding against the applicant on a misunderstanding of the evidence and the applicant’s claims is a jurisdictional error. 

   4.The Tribunal, in paragraph 21 of its decision, did not accept “the credibility of [the applicant’s] account of being targeted by the CID over suspected links with the LTTE arising from his relationship with his cousin …”.  One basis for this finding by the Tribunal was that it was not plausible that the CID could believe [his cousin] was involved in weapons smuggling for the LTTE, but then release him after four days.  However, the evidence before the Tribunal was that the CID did not merely release him after four days, but instead released him after four days and then kidnapped him between one and three weeks later.  The applicant’s claim was that the CID released the applicant after four days but then kidnapped him between one and three weeks later.  The Tribunal overlooked or failed to deal with this aspect of the applicant’s claims, which is a jurisdictional error. 

Ground 2

1. At all material times, s.424A of the Act relevantly provided:

   424A  Information and invitation given in writing by Tribunal

   (1)     Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   …

   (3)     This section does not apply to information:

   …

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   ….

2. The burden of Ground 2 of the amended application was that s.424A of the Act had, in broad terms, required the Tribunal to notify the applicant that the information he had given orally during his entry interview that:

   CID would ring my uncle’s house and ask for money to release my cousin

   would be the reason or part of the reason for it affirming the delegate’s decision and why that was so. It was submitted that a s.424A notification had been necessary because the Tribunal had relied on that information in finding that the applicant’s account was not to be accepted.

3. That contention is not correct.

4. Contrary to the applicant’s submissions, information he gave which contradicted other information he gave is not, for that reason alone, evidence which amounts to a “rejection, denial or undermining” of his claims.  More specifically, evidence that the CID rang the home of the applicant’s uncle seeking a bribe or a ransom said nothing about whether the applicant’s claim to fear harm for a Convention reason was well-founded.  It was no more than evidence of a demand having been made to third parties.

5. Further, because the information in question did not amount to a “rejection, denial or undermining” of the applicant’s claim to be a person to whom Australia owes protection obligations, it was not information which could be the reason or part of the reason for the Tribunal affirming the delegate’s decision:  SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1195-1196 [17].

6. Finally, the relevant reason supporting the Tribunal’s affirmation of the delegate’s decision was its disbelief of the applicant’s claims, a disbelief engendered by the disparity in his accounts. Disbelief is not “information” for the purposes of s.424A: SZBYR v Minister at 1196 [18].

Ground 3

1. The applicant submitted that one reason the Tribunal had not been satisfied his account was credible was its perception of an inconsistency between his evidence at his entry interview and his claims in his protection visa application.  He described this as the “Third Reason”.  He argued:

   31.The applicant's evidence recorded in the entry interview was as follows: (CB 23)

   “My cousin is still missing.  CID then would ring my uncle's house and ask for money to release my cousin, CID have taken the money but they have never released him.”

   32.According to the Tribunal at CB 237.7, the applicant stated in his entry interview “that it was only [his cousin’s] parents who paid the money” to those who demanded money for [his cousin’s] release.  The Tribunal's belief that the applicant claimed at the entry interview that “it was only [his cousin’s] parents who paid the money” was important to the Tribunal's finding in the Third Reason.  In particular, the Tribunal commented in the Third Reason:

   “As put to him at the hearing, I also find it implausible that if it was [his cousin’s] family who provided the money the CID would target his own family when the flow of money dried up.”

   33.However, as recorded above, the applicant did not say in his entry interview that it was only [his cousin’s] family who provided the money to [his cousin’s] captors.  Instead, the applicant merely stated “CID then would ring my uncle's house and ask for money to release my cousin”.

2. The relevant passage in the Tribunal’s reasons said:

   His account of ransom demands being placed on his parents for the return of [his cousin] appears implausible.  When he was asked why the demands would have been directed to his own mother, rather than to [his cousin’s] parents, he suggested that [his cousin] was raised by his mother and, when he was in the United Kingdom, sent money back to the family, implying that his family felt some form of obligation to secure [his cousin’s] release.  He added to this that [his cousin’s] father and brothers in London had, in fact, contributed to the ransom payments.  When it was put to him that this seemed inconsistent with the information in his entry interview that it was only [his cousin’s] parents who paid the money he adopted a new explanation, to the effect that [his cousin’s] parents spoke no Sinhala and so left it to the Applicant's mother (a Sinhala speaker) to make all the arrangements with the CID and pay the money to them.  Having considered this explanation I find it generally implausible and I note that it conflicts with the information in his entry interview that the CID did, in fact, telephone his uncle's house to ask for money for [his cousin’s] release.  As put to him at the hearing, I also find it implausible that if it was [his cousin’s] family who provided the money the CID would target his own family when the flow of money dried up.  I find implausible his suggestion that the CID failed to take any action against [his cousin’s] father over this matter because of his age and his inability to walk.

3. Given what was recorded in the written record of the Irregular Maritime Arrival Entry Interview on 30 August 2012, which is the best evidence of what happened at that interview, I do not think too much should be made of the Tribunal’s use of the word “only” in the passage quoted above, namely:  “it was only [his cousin’s] parents who paid the money”.  I read that to mean no more than that the only people to whom the applicant referred in that interview as having met a ransom demand were his uncle and aunt in the sense that in his Irregular Maritime Arrival Entry Interview he attributed no exclusivity to them in this connection, he just mentioned no one else.  The applicant’s argument therefore mischaracterises the Tribunal’s fact finding.

4. In any event, even if the applicant’s reading of the passage were correct he misconstrues the Tribunal’s reasoning.  The relevant reasoning was concerned with the dissonance between the applicant’s evidence at the hearing, that the ransom negotiations were conducted through his mother because she spoke Sinhala, and his evidence at the interview, that money had been paid in response to calls having been made to his uncle’s house from which the Tribunal reasonably concluded that the ransom had been paid by his uncle and aunt, no reference being made of the role allegedly played by the applicant’s mother.  It was open to the Tribunal to conclude that the more recent evidence concerning the involvement of the applicant’s parents lacked credibility because it had not been mentioned earlier.

Ground 4

1. Ground 4 of the amended application concerns the following passage in the Tribunal’s reasons:

   Finally, as put to the Applicant at the hearing, if the CID had entertained any lasting belief that [his cousin] was involved in so grave a matter as weapons smuggling for the LTTE, either because of the company he was keeping or because he had built his house on the Udappu shore, I am not satisfied it is plausible that they would have released him after just four days.  Nor am I satisfied that, had they in turn genuinely suspected the Applicant of LTTE involvement because of his relationship to [his cousin] they would have released him after they questioned him for a day on one occasion and then for a much briefer period at his house on another.

2. The applicant submitted that:

   35.The Tribunal found at [21] (CB 236) that it was “not satisfied as to the credibility of [the applicant's] account of being targeted by CID over suspected links with the LTTE arising from his relationship with his cousin Balu”. The Tribunal provided five reasons on which this finding was based.  One reason was as follows: (fifth dot point at CB 238.3) (“the Fifth Reason”)

   “Finally, as put to the applicant at the hearing, if the CID had entertained any lasting belief that [his cousin] was involved in so grave a matter as weapons smuggling for the LTTE ... I am not satisfied it is plausible that they would have released him after just four days.”

   36.In summary, the Tribunal considered in the Fifth Reason that it was not plausible that the CID could believe [his cousin] was involved in weapons smuggling for the LTTE, but then release him after four days.

   37.However, the evidence before the Tribunal was that the CID did not merely release the applicant after four days, but instead released him after four days and then kidnapped him between one and three weeks later.  For example:

   a)The applicant stated in paragraph 8 of his statement date [sic] 4 November 2012 which accompanied his protection visa application: (CB 64)

   “A week after he was released, [his cousin] was abducted by masked four/five men ... from his home ... They were from CID. We don't know why he was abducted but ever since then random people have demanded money for his release.”

   b)At the interview before the Minister's delegate, the delegate records the applicant's evidence concerning [his cousin’s] “release after a period of a few days” at CB 127.6.  The delegate then records at CB 128.1:

   “The applicant claims that after his cousin and wife returned to their house ... they continued to live there for two to three weeks before he was against [sic]  abducted ... The applicant stated that he believes that they were the CID as they were the people that had taken and arrested his cousin in the first instance.”

3. The fact is that the applicant accepts that his cousin was released by the CID after four days.  That he may later have been seized again by masked men, does not change the fact that he was released when the Tribunal said he was, even if those men abducting him later were CID agents acting as such.  Consequently, no legal or factual error in the relevant statement is apparent.

4. The applicant also submitted:

   38.The applicant's claim was that the CID released the applicant after four days but then kidnapped him between one and three weeks later.  The Tribunal did not make a finding which dealt with this aspect or integer of the applicant's claims.

5. At the trial of this application it was argued:

   … one of the applicant's claims - or essential claim was that he was targeted by the CID over suspected links with the LTTE arising from his relationship with [his cousin].  So … part of his claim was to persuade the tribunal that the CID had a real interest and a serious interest in his cousin …

   and that from this flowed an interest in him because the CID wanted to get information from him about his cousin.

6. The argument continued:

   … But the point is that the tribunal said … I don't believe you.  You're trying to persuade me that the CID was interested in [your cousin] because of weapon smuggling, but … it doesn't make sense if they have such an interest that they would release him after just four days.  And the applicant's complaint was that the applicant didn't just say … the CID released him after four days.  The applicant said the CID released him after four days and then grabbed him back one to three weeks later.

   … And … the abduction is by the CID - the applicant says contributes to or supports his claim that the CID was - had a concern that [his cousin] was engaging in weapon smuggling.  Your Honour, I understand that it's more convoluted and indirect a claim than others, but it's the claim the applicant made. 

7. The relevant claim to fear persecution was that the CID was interested in the applicant:

   a)because of his association with his cousin;

   b)who was of interest to the CID;

   c)which interest was demonstrated by the fact that that cousin was detained by the CID for four days and then released;

   d)and also by the fact that that cousin was taken again shortly after that four day detention. 

8. The logic of the applicant’s argument seems to be that:

   a)his cousin’s further detention supported his allegations that his cousin was of interest to the CID and that as a consequence he too was of interest to the CID;

   b)his cousin’s further detention was an integer of his claim to have a well-founded fear of persecution for a Convention reason;

   c)the Tribunal failed to have regard to his allegation that his cousin had been detained again shortly after the four day detention; and

   d)because that factual allegation was an integer of his claim to fear persecution, the Tribunal’s failure to consider it amounted to jurisdictional error:  Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 at 152 [42].

9. In Htun, Allsop J relevantly said:

   … The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant eg 866.211, make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with.  If the sur place claim is, or is to be seen as, based on more than one foundation — that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with.  (at 152 [42])

10. The Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 236 FCR 593 said:

    … The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons.  If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision.  (at 604 [45])

11. A claim or an integer of a claim is a factual allegation advanced by an applicant as a basis upon which it may be concluded that he or she has a well-founded fear of persecution for a Convention reason or of suffering harm sufficient to engage Australia’s complementary protection obligations. In this case, the fact that the applicant’s cousin may have been detained again shortly after his release from four days’ detention would not, if proved, support a conclusion that the applicant’s circumstances engaged Australia’s protection obligations, whether under the Convention or s.36(2)(aa) of the Act. It would be no more than a factual matter relevant to deciding that issue.

12. Consequently, assuming for the sake of argument that the Tribunal did not consider the evidence that the applicant’s cousin had been detained again not long after being released from four days’ detention, a contention in any event contradicted by par.22 of the Tribunal’s reasons, that omission did not amount to a failure to consider an integer of a claim or a contention in the sense discussed in Htun and WAEE.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  6 August 2019