AIL15 v Minister for Immigration

[2016] FCCA 1088

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1088

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider the applicant’s claims relating to past interaction with security forces in Sri Lanka – whether the Tribunal failed to comply with Ministerial Direction No.56 in contravention of s.499(2A) of the Migration Act 1958 (Cth) – whether the Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act – whether the Tribunal’s decision was affected by legal unreasonableness – whether the Tribunal failed to comply with s.425 of the Act – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2A), 425, 499

Cases cited:
AHX15 v Minister for Immigration & Border Protection [2015] FCA 1183
AJW15 v Minister for Immigration & Border Protection [2016] FCA 197
ARS15 v Minister for Immigration & Border Protection [2015] FCCA 2135
Fang Wang v Minister for Immigration & Border Protection [2015] FCA 1044
Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration & Border Protection v SZSNW (2014) 229 FCR 197, [2014] FCAFC 145
Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32
SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9
SZRHL v Minister for Immigration & Citizenship (2013) 136 ALD 641
SZSMR v Minister for Immigration & Border Protection [2015] FCA 655
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175
SZTCV v Minister for Immigration & Border Protection [2015] FCA 1309
SZTMD v Minister for Immigration & Border Protection [2015] FCA 150
SZTEP v Minister for Immigration & Border Protection [2015] FCA 1499
SZUQZ v Minister for Immigration & Border Protection [2015] FCCA 1552
SZWCO v Minister for Immigration & Border Protection [2016] FCA 51
Uelese v Minister for Immigration & Border Protection (2015) 89 ALJR 498, [2015] HCA 15
VAAD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 117

Applicant: AIL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 892 of 2015

Judgment of: Judge Smith

Hearing date: 23 March 2016

Date of Last Submission: 23 March 2016

Delivered at: Sydney

Delivered on: 13 May 2016

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the second respondent be amended to “Administrative Appeals Tribunal”.

2. A writ of certiorari issue directed to the second respondent quashing the decision of the Tribunal dated 28 February 2015.

3. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 10 July 2013 in accordance with the law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 892 of 2015

AIL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal[1] made on 28 February 2015. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

   [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 is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia on 11 August 2012 and lodged an application for a protection visa on 5 December 2012. He comes from the northern Jaffna region of Sri Lanka and claimed that in 2009 he and his family were taken to an army camp. The applicant claimed he was repeatedly questioned and mistreated there. Upon release, the applicant and his family were located near the army camp and members of the army regularly questioned him about links to the LTTE[2] and beat him up when he denied the accusations.

   [2] Liberation Tigers of Tamil Eelam

2. The applicant claimed that in March 2012 he was taken to an army camp, tied to the wall in a dark room and asked for information about the LTTE. In June 2012 the applicant claimed that he was again beaten by army personnel when playing cricket. Three weeks later he was questioned and beaten in connection with a black flag being flown on his father’s fishing boat. In July 2012 the applicant’s neighbour was abducted and the applicant decided to depart Sri Lanka.

3. At an interview with a delegate of the Minister, the applicant claimed that he also had problems because of this religion, namely Hindu. He said that Hindu temples were being destroyed and that Buddhist temples and statues were being erected.

4. The delegate made a decision on 10 July 2013 to refuse to grant the applicant a protection visa. She found that the applicant’s claim in connection to religion did not amount to persecution within the meaning of the Migration Act 1958 (Cth) but did accept that the applicant was a member of a social group of young Tamil males from northern Sri Lanka and that he faced a real chance of persecution for that reason while in the Jaffna area. However she found that the applicant could readily relocate to Colombo and so did not satisfy the criteria for the grant of the visa. The applicant applied to the Tribunal for review of that decision.

5. By letter dated 24 March 2014 the applicant was invited to attend a hearing to be held by the Tribunal on 16 May 2014. On 15 May 2014 the migration agent acting for the applicant sent to the Tribunal a 52 page submission in support of the application for review. They submitted that the following of the applicant’s characteristics created a real risk that the applicant would be arrested on suspicion and subsequently harmed if he were to return to Sri Lanka:

   ·    Race as a Tamil;

   ·    Birth and residence in Jaffna, a former LTTE stronghold;

   ·    Age;

   ·    Past encounters with the Sri Lankan authorities;

   ·    Arrests and torture;

   ·    Displacement from home area;

   ·    Illegal escape from Sri Lanka;

   ·    Act of seeking protection in a Western country.

6. In addition to those matters, the submissions dealt with a number of other topics. Amongst those were the failure of Sri Lanka to provide protection and the related topic of the increased Sinhalisation of Tamil areas. There were also a number of submissions addressed to attacks by militant Buddhist groups against Hindus and Muslims and the increased militarisation of the North and East of Sri Lanka.

7. The applicant attended the hearing on 16 May 2014 together with his representative and gave evidence and made submissions in support of his claims. On 22 May 2014 the applicant’s representative sent a further submission to the Tribunal (“post-hearing submission”).

8. In the post hearing submission there was a reference to a 2013 report from the US Department of State concerning human rights practices in Sri Lanka as well as further reference to the increased militarisation of the North of Sri Lanka. The submission also addressed the evidence given by the applicant at the hearing that he had a fear of returning to Sri Lanka as a Hindu especially following the destruction of a local temple in his village.

9. On 28 February 2015 the Tribunal made its decision to affirm the delegate’s decision.

The Tribunal’s decision

1. In his submissions the applicant accurately summarised the Tribunal’s reasons for its factual findings concerning his claims as follows.

2. The Tribunal accepted that the applicant had been detained and mistreated in the manner he claimed on each of the occasions in 2009. However, it did not accept that the applicant had been mistreated in 2012 on any the occasions he claimed.

3. The first reason the Tribunal gave for not accepting that the detentions and mistreatment occurred in 2012 was that it found that it was implausible that the army would, by 2012, still be detaining all young Tamil males from Vanni on suspicion that they might have information concerning LTTE activities. This was in contrast to the delegate who had considered this to be plausible. Nevertheless that is the only reason the Tribunal gave for disbelieving the applicant’s March 2012 claim of detention and mistreatment.

4. The Tribunal found the applicant’s evidence concerning the June 2012 detention to be inconsistent in that his written claim to the Department mentioned a cricket game and that the mistreatment occurred there whereas, in his oral evidence to the delegate and the Tribunal, there was no mention of the cricket game and the mistreatment was said to have occurred at the army camp. For that reason the Tribunal found the applicant’s evidence concerning this event not to be credible.

5. The Tribunal disbelieved the applicant’s claim in relation to the neighbour because the applicant did not repeat the claim at the Tribunal hearing. The Tribunal disbelieved the claim in relation to the black flag on the boat on the basis of cumulative credibility findings even though there were only minor inconsistencies in his versions of this event. The balance of the applicant’s claims were also disbelieved on the basis of the cumulative credibility findings.

6. The Tribunal then assessed whether the applicant satisfied the criteria for the grant of the protection visa by reference to these findings. To the extent that that assessment is relevant to these proceedings it is dealt with below in respect of the grounds upon which the application for review is brought.

Consideration

1. The applicant was given leave to file a further amended application at the hearing.

Ground 1:

The RRT erred in basing its decision on the fact that the applicant did not claim any past interaction with security forces in Sri Lanka when the applicant had made claims of past interaction

1. This ground relates to the way in which the Tribunal dealt with the 2013 US government report referred to in the applicant’s post-hearing submission. The relevant paragraphs of the Tribunal’s decision are:

   [59]In post-hearing submissions, the representative cited a 2013 US government report stated [sic] that serious human rights abuses such as unlawful killings by security forces and government-allied paramilitary groups continued in predominantly Tamil areas. She argues a disproportionate number of human rights victims are Tamils, highlighting ongoing targeting of Tamils as an ethnic minority, with intimidation, extortion and violence against Tamil residents.

   [60]Even accepting generally that some extra-judicial killings occur, and that extortion attempts occur in the north and east, the applicant has not claimed any past interaction with security forces or paramilitary groups and I find based on the cumulative accepted evidence in this decision that the applicant has not had past interaction with, and has not been of specific interest to, the Sri Lankan security forces or paramilitary groups for any reason. I find there is no real chance that he will personally face these types of harm for any reason advanced, now or in the reasonably foreseeable future.

2. The applicant makes two points about these paragraphs. First, there was no qualification in either the submission or the report relied upon in the submission that the potential for harm at the hands of security forces depended upon past interaction with those forces; and secondly, that it was not only plain that the applicant had claimed to have had interaction in the past with security forces, namely the army, but that the Tribunal had accepted that claim.

3. The Minister submitted that, when read fairly in the context of its previous findings, the Tribunal at [60] cannot by referring to security forces be including the Sri Lankan Army or Navy, as the Tribunal accepted that the applicant was beaten in a navy camp in 2009: [33], and the applicant had claimed (though the Tribunal had rejected) continued harassment from the Army after 2009.

4. In order to properly understand the submissions and the resolution of the issues, it is necessary to set out the relevant part of the post hearing submissions:

   We refer to our earlier submission in which we have indicated that the security situation in Jaffna and the North of the country remains precarious for the Tamils of Jaffna.

   The US Department of State in its ‘2013 Country Report on Human Rights Practices’ states that serious human rights abuses such as unlawful killings by security forces and government allied paramilitary groups have continued to take place in predominantly Tamil areas. Furthermore, a disproportionate number of human rights abuses victims [sic] were said to be Tamils which highlights the ongoing targeting faced by members of this minority ethnic group. The report also indicates that groups such as the EPDP who are aligned with the government have been responsible for intimidating, extorting and committing violence against Tamil residents.

   Tamils have also been reported to have their right to privacy infringed upon with the government continuing to carry out search operations within Tamil neighbourhoods. It is reported that this also involves security forces engaging in wiretapping and monitoring private citizens without any regard for the laws of the country.

   …

5. The first question to resolve is what the Tribunal meant by its reference to security forces. The question only arises because those words would potentially ordinarily include the Navy and Army; however, as the Minister accepted, the Tribunal accepted that the applicant had been detained and beaten by the Navy and had at least claimed similar treatment at the hands of the Army.

6. It is well-established that a Court in judicial review proceedings should not comb through the reasons of an administrative decision maker in search of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. That is what is often called giving a beneficial construction to those reasons. However, the approach does not go so far as to require, or even enable the rewriting of the reasons for a particular decision. Rather, a common sense and realistic approach should be taken to understanding the reasons as a whole to see what the Tribunal was saying and it does not follow that a beneficial construction should or could result in a situation where words are construed as meaning something other than what they, in a plain and common sense way, must be intended to mean: AHX15 v Minister for Immigration & Border Protection [2015] FCA 1183 at [24] (McKerracher J) referring to Fang Wangv Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] – [15] (Allsop J, as his Honour then was).

7. Further, this approach does not require that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour: SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 at [26] (Stone J).

8. It is puzzling, to say the least, that the Tribunal could accept on the one hand that the applicant had been detained and beaten by the Navy and yet, on the other, say, without any apparent qualification, that the applicant had not claimed any past interaction with security forces or paramilitary groups. A number of possibilities present themselves: first, that as the Minister suggested, the Tribunal did not mean to refer to the Navy or Army when it used the words “security forces”. Secondly, it may simply have forgotten at this stage of the preparation of its reasons that it had accepted that the applicant had been beaten by the Navy.

9. The principal difficulty with the Minister’s submission is that there is no warrant in the 2013 report to limit the agencies within the Sri Lankan government that might fall within the scope of the words security forces. There are a number of indications in the submission concerning the report that there is no such limitation. First, the human rights abuses and unlawful killings were said to be by “security forces and government allied paramilitary groups”. The reference to paramilitary groups suggests that the security forces are some form of armed group, such as the military. They would necessarily include either the Navy or the Army. Secondly, the submission refers to the “government continuing to carry out search operations within Tamil neighbourhoods” (emphasis added). Search operations are likely to be carried out, again, by armed forces including the military although it could equally apply to the police. Such operations are unlikely to be conducted by clandestine or secret groups. Thirdly, there is a reference to “wiretapping and monitoring private citizens”. While this sort of conduct is more likely to be engaged in by either the police or some more clandestine agency of the government, this is not the only conduct complained of, the main problem being unlawful killings and, in any event, the word “forces” is not readily applied to secret agencies.

10. In light of those considerations, I do not accept that the proper reading of the Tribunal’s reasons requires the words “security forces” to exclude a reference to the Army or Navy. 

11. The second part of this ground is also correct, namely, that there was nothing in the report or the submissions that limited the group of those at risk of these human rights abuses to those who had had past interaction with the security forces or paramilitary groups. However, given my conclusion as to what the Tribunal meant by “security forces”, that is not a necessary part of the next issue. That issue is the effect of the Tribunal’s incorrect statement that the applicant had not claimed any interaction with security forces.

12. The immediate effect of that statement is that it was one of the bases for the Tribunal’s rejection of the submission based on the 2013 report. In other words, it was one of the reasons for which the Tribunal found that the information in the report did not support the argument that the applicant had a well-founded fear of persecution for a Convention reason.

13. The finding was also one of the reasons for which the Tribunal rejected the applicant’s claim on the basis of the “Sinhalisation” and increased militarisation of Tamil areas. At [91] of its reasons, the Tribunal said:

    I have accepted the applicant may face some state questioning and monitoring on return to Jaffna due to his illegal departure, but have not accepted that there is any real chance this will amount to serious harm. I find it speculative and the chances remote and not real that he will face extra-judicial monitoring in all his circumstances on return to Jaffna. …

14. See also [110] and [125] of the Tribunal’s reasons.

15. For those reasons, the wrong statement had a material effect on the Tribunal’s decision.

16. The applicant argued that this establishes that there was jurisdictional error in the form of unreasonableness. The Minister did not submit that, if the Tribunal’s statement was wrong, as I have found, it did not amount to jurisdictional error. I find that it did.

17. There is a growing body of case law dealing with the impact of errors concerning facts on the ultimate decision of a decision-maker: see for example, VAAD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 117, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; SZRHL v Minister for Immigration & Citizenship (2013) 136 ALD 641; Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105; Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67; Minister for Immigration & Border Protection v SZSNW [2014] FCAFC 145; SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175; SZSMR v Minister for Immigration & Border Protection [2015] FCA 655; SZWCO v Minister for Immigration & Border Protection [2016] FCA 51. These authorities reveal that, once an error is found, the question is the impact of that error on the Tribunal’s exercise of jurisdiction. Thus, as the duty to review requires the Tribunal to consider available material and the claims that arise from it, an error that deflects the Tribunal from that task will amount to jurisdictional error. That is what occurred in this instance.

1. The first ground is made out.

Ground 2

The RRT failed to comply with Ministerial Direction No.56 in contravention of s.499(2A)

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. Section 499(2A) requires a personal body to comply with a direction made under s.499(1). Failure to comply with such a direction may amount to jurisdictional error.

2. Direction No.56 was made by the then Minister for Immigration under s.499(1) 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’

3. The first of the guidelines referred to in the Direction is relevant to these proceedings. In that guideline there are a number of sections dealing with the intentional infliction of pain and suffering. In each of those there appears the following statement:

   … 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.

4. That aspect of the guideline might be relevant because of the criterion for the grant of a protection visa found in sub-s.36(2)(aa) of the Act. In order to satisfy that criterion, an applicant must establish that there are “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.

5. Section 36(2A) of the Act provides that a non-citizen will suffer significant harm if, relevantly:

   …

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

6. Each of those instances of significant harm is further defined in s.5 of the Act. Those definitions all include an element of intention. For example, cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is 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;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

7. The applicant argued that the part of the guidelines extracted above were relevant because the Tribunal accepted the likelihood that the applicant’s treatment in prison in light of the poor conditions there would constitute significant harm. In fact, the Tribunal did not accept any such likelihood. It said, at [126]:

   Further, I find that, to the extent the applicant will experience any defined form of significant harm due to poor conditions due to overcrowding during a fairly brief period on remand, such conditions will [sic] would not be intentionally inflicted … or intended to cause any form of significant harm. …

8. Properly understood, the words “to the extent” mean “even if”. That is because the Tribunal said in the immediately preceding sentence:

   … I find there is no real risk that the applicant will face torture or any other defined form of significant harm during that brief period [of detention].

9. In light of that finding, the intentional component of the definition of serious harm was not necessary to the Tribunal’s conclusion and so not relevant. Thus, even if the Tribunal were required to “take account of” the guideline in other respects, it was not required to do so insofar as it dealt with intention.

10. The applicant relied on the decision of the High Court in Uelese v Minister for Immigration & Border Protection [2015] HCA 15 (2015) 89 ALJR 498 for the proposition that once the Tribunal is aware of matters which might engage complimentary protection obligations, and especially where it makes a positive finding as to the existence of the particular matter (in this case significant harm during imprisonment) then it must have regard to the extract from the guidelines. The decision considered a different direction (Direction No.55) made in connection with a different (discretionary) power (s.501). Leaving aside the specific differences in the wording of that direction, the fact that the power in question involved a discretion distinguishes that case from the present case. It might be added that the applicant’s submission that the requirement to “take [something] into account” means that the decision maker must give weight to that matter “as a fundamental element in making his determination” (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32) might have been correct in respect of the exercise of discretionary powers, but in my opinion, is not correct in relation to decisions such as the present one turning on satisfaction of essentially factual criteria.

11. In any event, the Direction and its effect were considered by Perram J in SZTMD v Minister for Immigration & Border Protection [2015] FCA 150. His Honour noted, at [16], that cll.2 and 3 of the Direction, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent they are relevant and, at [20], that it is the Tribunal’s view of what is relevant that counts, not the Court’s view. Given that his Honour was considering the same issues in the same context as I am considering, I am bound to follow that reasoning.

12. There was also an issue between the parties as to whether the Tribunal actually took the guidelines into account in light of the fact that the Tribunal referred to its obligation to do so (at [22]) but otherwise did not mention it. There are authorities that come to different conclusions as to the inference that arises from those facts. On the one hand, the applicant relied on the decisions in this Court of SZUQZ v Minister for Immigration & Border Protection [2015] FCCA 1552 and ARS15v Minister for Immigration & Border Protection [2015] FCCA 2135. On the other, the Minister relied on decisions of the Federal Court in SZTCV v Minister for Immigration & Border Protection [2015] FCA 1309 (Nicholas J) at [14], and AJW15 v Minister for Immigration & Border Protection [2016] FCA 197. In the latter case, Barker J said:

    [46] The Court agrees that the Tribunal’s statement that it was required to take account of the guidelines should in itself, on a fair reading of the Tribunal’s reasons in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272; [1996] HCA 6, be sufficient to conclude the Tribunal has done so. See SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 at [14].

13. In my view, any inference must be drawn on the basis of all the facts of the case. Those facts differ from case to case and so one decision cannot determine the finding to be made in another case. That said, it is a matter for the applicant to establish to my satisfaction that the Tribunal did not take the guideline into account. I am not satisfied that it did not. The mere fact that it did not mention it in connection with its brief conclusion at [126] of its reasons is insufficient in my view to overcome the inference to be drawn from its mention of the guidelines at [22] of its reasons.

14. For all of those reasons, the second ground fails.

Ground 3

Failure to take into account a relevant consideration

1. This ground is the same as the second ground and is rejected for the same reason.

Ground 4

The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.

1. There are two aspects to this ground: first, that the Tribunal erred by proceeding on the understanding that intention is a necessary element to certain types of significant harm. As the Minister submits, this argument is contrary to SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64 (Judge Driver) at [45-51], an appeal from which is presently reserved before a Full Court. In SZTEP v Minister for Immigration & Border Protection [2015] FCA 1499 (Gilmour J) at [24-25], SZTAL was regarded as correctly decided. I am bound by the latter decision and reject this aspect of the ground for that reason.

2. The second aspect of the ground is that the Tribunal erred by failing to consider whether the requisite intention could be inferred from the Government’s knowledge of the poor prison conditions. The fact is that the Tribunal found that there was no requisite intention. Whether or not it could, or should have found otherwise, is not indicative of jurisdictional error. This aspect, and the whole of ground four is rejected.

Ground 5

The Tribunal decision was affected by legal unreasonableness as it made a critical finding of fact that the evidence provided by the applicant's adviser could not rationally or logically inform the risks to Hindus in Jaffna when the information was capable of rationally or logically informing the risks to Hindus in Jaffna.

1. This ground focuses on the following passage in the Tribunal’s reasons:

   [116] Having regard to the representative’s arguments regarding religion and the information provided, I accept there are reportedly increasing examples in recent years of radical Buddhists fomenting religious intolerance, manifested in some increased instances of attacks and violence in various locations over past years in Sri Lanka. However, the reporting provided tends to conflate incidents of violence towards Hindus, Christians and Muslims in different areas of Sri Lanka at various times and in various contexts and I do not accept that it can rationally or logically inform the risks to Hindus in Jaffna. Based on the information provided, I do not accept that instances of sectarian harm from Buddhist radicals occur routinely or regularly or often towards Hindus generally, or in any case, to Hindus in Jaffna specifically.

2. The applicant’s argument was as follows.  The information provided by the advisor was that the Government of Sri Lanka had a policy of introducing Buddhist culture to the previously Hindu areas of the North of Sri Lanka where the applicant lived. The information provided by the applicant's adviser was that the Buddhist extremists had ties with high government officials. There was no information before the Tribunal which would indicate that the Buddhist extremists were specifically exempting the North of the country from their activities. Indeed, the Government push to increase Buddhist culture in the North of the country provides a context in which Buddhist extremism would likely flourish. The reasoning of the Tribunal is arbitrary assertion. Its reasoning lacks a logical foundation itself and is a critical link in its rejection of the applicant's claims of fear of religious persecution.

3. The Minister argued that the Tribunal was simply noting that the country information provided by the applicant’s adviser did not support the claim that the applicant would be unable to practice his Hindu religion in Jaffna. That view was open given the information did not so state and was largely concerned with other religions in other parts of Sri Lanka.

4. In my view the Tribunal was, correctly, addressing an issue broader than the applicant’s ability to practice his religion in Jaffna. The information provided by the applicant went to the physical safety of Hindus as well as their ability to practice their religion. However, I do not think that it was correct to say that the information put forward could not rationally or logically inform the risks to Hindus in Jaffna. First, contrary to what it said, the information did not conflate incidents in one area. Rather, it spoke of the combination of the “Sinhalisation” of Tamil areas, the increase of Buddhist temples in those areas and the “serious escalation in the number of attacks by extremist Buddhist groups”. Thus, the pre-hearing submissions included an extract from a report that stated:

   …

   Combined with what many Tamils see as an effort to impose Sinhala and Buddhist culture across the whole of Sri Lanka and a failure to address many social aspects of rebuilding a society after conflict, these policies risk reviving the violence of past decades.

   …

5. Other reports relied on by the applicant referred to religious tensions in the north (where Jaffna is situated), government sponsored Sinhalese colonization of former LTTE-held areas (of which Jaffna was one) including the increase of Buddhist statues there, reports of religious tension among Muslim, Tamil, Christian and Buddhist groups (without reference to location), dozens of religiously-motivated attacks with the authorities rarely making arrests or initiating prosecutions (without reference to location) and a certain extremist Buddhist group having a policy to incite monks and laity to violence.

6. The post-hearing submissions also contained a reference to the US Department of State Country Report on Human Rights for 2013 which noted;

   … a serious escalation in the number of attacks by extremist Buddhist groups, many with direct ties to high government officials, against religious minorities, including Muslims, Hindus, Jehovah’s Witnesses, evangelical Christians, and Catholics.

7. That information was at least probative of the possibility that the applicant, as a Hindu, might suffer serious harm as a result of the combination of the government’s policy of Sinhalisation of Tamil areas and the policy of Buddhist extremists to incite violence against members of other religions. It was not open to the Tribunal to base its findings on the basis that that information did not have that probative value. It set aside that information without any logical basis and so fell into jurisdictional error.

8. The fifth ground succeeds.

Ground 6

The Tribunal failed to comply with s 425 of the Act as it did not afford the applicant an opportunity to present evidence or arguments on the critical issue of whether Bhuddist (sic) extremists had attacked Hindus in the North of Sri Lanka.

1. In my view this ground fails because there was no obligation on the Tribunal to hold a further hearing in respect of this issue because the issue had been raised prior to the hearing on 16 May 2015 and was in fact raised at that hearing: see similarly Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at [51].

Conclusion

1. The Tribunal’s decision is affected by jurisdictional error. Writs of certiorari and mandamus will issue quashing the Tribunal’s decision and requiring the Tribunal to determine the application for review according to law.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  13 May 2016