Ako21 v Minister for Immigration

[2018] FCCA 4043

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKO21 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 4043

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for protection visa – assertion Administrative Appeals Tribunal failed to take into account the United Nations High Commissioner for Refugees’ Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154
SZLYT v Minister for Immigration and Citizenship [2009] FCA 76

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

WZAVX v Minister for Immigration and Border Protection [2016] FCA 411

Applicant: AKO21

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 238 of 2021

Judgment of: Judge Dowdy

Hearing date: 12 July 2017

Delivered at: Sydney

Delivered on: 25 May 2018

REPRESENTATION

Counsel for the Applicant: Mr S. Hodges

Solicitors for the Applicant: Stephen Hodges Solicitor

Counsel for the Respondents: Mr T. Reilly of Counsel

Solicitors for the Respondents: DLA Piper Australia

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Leave is granted to the Applicant to file in Court and rely upon the Amended Application dated 29 June 2017 already electronically lodged in the Court Registry on 3 July 2017.

2. The said Amended Application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 238 of 2021

AKO21

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Sri Lanka of Tamil ethnicity aged 28 years.

2. By Amended Application filed in Court on 12 July 2017 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 26 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 6 August 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background and Claims for Protection

1. The Applicant arrived on Christmas Island by boat from Sri Lanka on xx xxx 2012 as an irregular maritime arrival and was a party to an Irregular Maritime Arrival Entry Interview on xx xxx 2012.

2. In his Statutory Declaration sworn on 8 November 2012 (Statutory Declaration) forming part of his Protection visa application lodged on 23 November 2012 he claimed that:

   a)He was born in Sri Lanka.

   b)He was a Tamil and a Hindu.

   c)His father was deceased and his mother was a house wife. From the age of seven or eight he lived with his uncle who supported him. His family was poor and in 1996 was displaced to Vavuniya but he remained with his uncle. He did not see his family again until 2000 when they were reunited.

   d)The area in which he and his family lived was “under the operation” of the Liberation Tigers of Tamil Eelam (LTTE). The family had to cooperate with the LTTE which made one male member of the family work for five days a month for it. One person in every family had to join the LTTE and his bother X joined the LTTE in 2008 under force. In early 2009 X disappeared and has not been seen since then. In March 2009 his family were at a place called Mathalai and there was a shell explosion and his grandparents and two cousins were killed. One of the Applicant’s legs was shattered and because of his injuries he will always be considered to be a LTTE fighter because of the big scars on his legs.

   e)At the end of the war the Applicant and his father were taken to the internally displaced persons camp at Vavuniya (IDP camp) where his injuries were looked at. The Applicant and his father were screened “to see if we were LTTE and we were cleared”.

3. On 6 May 2013 the Applicant submitted to the Minister a further Statutory Declaration declared on 1 May 2013 stating that on xx xxx 2013 he had been advised by his mother on the telephone that another brother, namely Y, had been taken away by the Criminal Investigation Division (CID). Y was released on xx xxx 2013 and had said that he had been questioned about the Applicant’s whereabouts and whether the Applicant was an LTTE member.  This questioning evidenced a continued risk for his safety were he to return to Sri Lanka.

Grounds and Criteria for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 5 April 2013.

2. In his Decision Record the Delegate noted that part of the country information which he had considered included the United Nations High Commissioner for Refugees’ Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012 (UNHCR Guidelines). The Delegate also recorded that the Applicant claimed that the harassment suffered by he and his family from the Sri Lankan military and CID was based on the suspicion that the family “were LTTE”, that he was always suspected of being a supporter of the LTTE because he had been living in LTTE controlled areas, that it was known that the Applicant’s brother had been in the LTTE and that the scars on his legs made the authorities think the Applicant was an LTTE fighter.

3. In the result the Delegate did not accept that the Sri Lankan authorities had a continuing adverse interest in the Applicant or the Applicant’s family because of suspected LTTE involvement and that the Applicant’s circumstances and actions did not appear consistent with those which would reasonably be expected of a person who was suspected of having involvement in the LTTE. The Delegate rejected the Applicant’s claims to have been detained, beaten and interrogated by the Sri Lankan authorities following his release from the IDP camp in 2009. The Delegate did not accept that the Sri Lankan authorities, including the CID and military, had an adverse interest in the Applicant or that they were searching for him. The Delegate further found that the Applicant did not face a real chance of serious harm by the Sri Lankan authorities for reason of his real or imputed political opinion as a consequence of his Tamil ethnicity or his brother’s involvement in the LTTE and was satisfied that the Sri Lankan authorities, although being aware that his brother was in the LTTE, had previously cleared the Applicant of any involvement in the LTTE and had shown no further interest in him.

4. Accordingly, the Delegate refused to grant a Protection visa to the Applicant under either the Refugees Convention criterion or the complementary protection criterion.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 20 August 2013 for merits review of the Delegate’s decision.

2. By a written submission dated 11 March 2015 the Applicant’s solicitor and registered migration agent stated the Applicant’s claims under the Refugees Convention criterion and the complementary protection criterion as being:

   2.1AKO21 fears that, upon return to Sri Lanka, he would be targeted by the Sri Lankan government authorities for the following Convention reasons:

   (a)his ethnicity, being Tamil;

   (b)his imputed political opinion, such opinion being anti-government and pro-Liberation Tigers of Tamil Eelam (LTTE);

   (c)his membership of the following particular social groups:

   (i)     Tamils from the North of Sri Lanka;

   (ii)    returned, failed asylum seekers of Tamil ethnicity.

   2.2In the alternative, we submit that AKO21 is owed protection obligations under the complementary protection provision in section 36 of the Migration Act. We submit that there is a real risk that AKO21 would be subject to arrest, detention and physical harm if he were to return to Sri Lanka.

3. Clause 3.5 of the written submission also pointed out that the UNHCR Guidelines noted that a person’s “real or perceived” links with the LTTE may give rise to a need for international refugee protection and in clause 1.2 claimed that in the final days of the war in early 2008 the Applicant’s brother X had been forced to join the LTTE and taken away to fight. By a further written submission dated 27 March 2015 the Applicant’s solicitor and registered migration agent claimed that the Applicant had a profile which fell within the UNHCR Guidelines due to his perceived links with the LTTE arising in particular from both his brother X’s membership of the LTTE and the Applicant’s own injuries, which were suggestive of LTTE involvement.

4. On 24 August 2015 this Court set aside the decision of the Tribunal (then Refugee Review Tribunal) dated 10 April 2015 by consent and remitted the review application back to the Tribunal for rehearing.

5. On 12 April 2016 the Applicant appeared before the Tribunal to give evidence and present arguments.

6. From [10] – [56] of its Decision Record the Tribunal recorded the claims of the Applicant. The Tribunal summarized the Applicant’s claims at [11] of its Decision Record as follows:

   [11]The issues in this case are the applicant claims to fear harm if he returned to Sri Lanka on the basis of his Tamil ethnic extraction and on the basis of an imputed political opinion of being pro LTTE. He also claims to fear harm if returned to Sri Lanka on the basis that he left Sri Lanka illegally and sought asylum in a Western country. He also claimed to fear harm on the basis of his membership of a particular social group in that he is a young Tamil male from the north of Sri Lanka.

7. At [14] of its Decision Record the Tribunal noted that the Applicant claimed that his brother was forced to join the LTTE in 2008 and that on 23 March 2009 a number of his family members were killed and he suffered permanent leg injuries which would mean that he “would always ‘be considered to be an LTTE fighter. I have big scars on my legs’”. At [15] the Tribunal noted that the Applicant had stated that he and his father were cleared of being connected to the LTTE. At [16] the Tribunal noted that the Applicant claimed that he and his family suffered harassment because he was suspected of being connected to the LTTE and this was related to the authorities knowing that his brother had been in the LTTE and the scarring on his leg. At [17] the Tribunal recorded that the Applicant claimed that if he returned to Sri Lanka he believed that he would be taken and would disappear and he thought he would be killed because the authorities thought that he was associated with the LTTE.

8. At [18] of its Decision Record the Tribunal noted that it had been referred to international country reports and to the UNHCR Guidelines by the Applicant’s submissions of 11 March 2015.

9. At [19] of its Decision Record the Tribunal referred to the Applicant’s submissions of 27 March 2015 which had submitted that the Applicant had a profile which brought him within the UNHCR Guidelines for people at risk in Sri Lanka because of his perceived links to the LTTE.

10. At [25] of its Decision Record the Tribunal recorded confirming at the hearing the basis of the Applicant’s claims and set them out.

11. At [27] of its Decision Record the Tribunal recorded that the Applicant held a Sri Lankan passport which had been issued to him in 2011 and that he had had no difficulty in obtaining it.

12. At [28] of its Decision Record the Tribunal recorded that the Applicant had stated that he had not been a member or supporter of the LTTE but had lived in areas controlled by the LTTE and had been subject to instructions from that organisation. He had further told the Tribunal that he had never been arrested or charged with any offences in Sri Lanka and had never been taken before a Court or detained under the Prevention of Terrorism Act in Sri Lanka.

13. At [45] of its Decision Record the Tribunal recorded the Applicant’s confirmation that there had not been any occasion in Sri Lanka when he had actually been physically harmed by the Sri Lankan authorities.

14. From [57] to [81] of its Decision Record the Tribunal set out its consideration of the Applicant’s claims and evidence. In the result the Tribunal rejected all of the Applicant’s claims stating at [73] as follows:

    [73]The Tribunal after considering the totality of the evidence and the country information and the materials provided by the applicant and the written submissions made on his behalf does not accept that the applicant has a well-founded fear of persecution if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of his Tamil ethnic extraction or on the basis that he would be perceived to have an imputed political opinion of supporting the LTTE. The Tribunal does not accept that the applicant has a well-founded fear o persecution if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of his membership of a particular social group of young Tamil males from the north of Sri Lanka. The Tribunal does not accept that the evidence and available and relevant country information that has been considered and discussed in these reasons supports the applicant’s claims in relation to these issues. The Tribunal after considering these claims and the evidence both individually and cumulatively does not accept that the applicant faces a real chance of serious harm on the basis of these claims should he return to Sri Lanka either now or in the reasonably foreseeable future.

15. At [74] of its Decision Record the Tribunal rejected the Applicant’s claim to fear harm because if he was returned to Sri Lanka he would be seen as a failed asylum seeker who left illegally and sought asylum in a Western country and the Tribunal affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds of the Amended Application as further amended at the hearing are as follows:

   1. The AAT committed jurisdictional error by failing to consider an integer of the applicant’s claim.

   PARTICULARS

   a. At [14], the applicant claimed that his brother was forcibly recruited by the LTTE in 2008.

   b. Furthermore, at [15], the applicant claimed that his brother had not been seen since and following his brother’s disappearance, the applicant and his family were taken away in vehicles by the CID and the military.

   c. At [66], the AAT accepted that the applicant’s brother was recruited by the LTTE in 2008.

   d. However, the AAT found that the applicant did not face a real chance of harm based on his familial connection.

   e.In particular, the AAT did not correctly consider the 2012 UNHCR risk profiles which include:

   i.   Former LTTE combatants or “cadres”

   ii. Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles

   2. The AAT failed to provide adequate reasoning for its findings.

   PARTICULARS

   a. As noted above, the AAT did not accept that the applicant may have been imputed with LTTE links despite having accepted that the applicant's brother was an LTTE cadre.

   b. At [66], the AAT noted, in its reasoning, that the applicant could not be imputed with a pro-LTTE profile because he and his father were cleared of LTTE links in 2009

   i.      However, the AAT failed to consider the totality of the applicant's evidence especially in relation to the constant questioning of his family after 2009 as well as the potential repercussions of his family's presence at the shelling incident in 2009.

   c. The AAT failed to provide adequate reasons as to why it came to the conclusion that the applicant did not face a real chance of harm despite accepting that the applicant's had familial connection with an LTTE recruit.

   3. The AAT committed jurisdictional error by failing to give adequate reasons for its decisions, or otherwise giving reasons that were illogical and/or not based on the evidence provided.

   PARTICULARS

   a. At [17], the applicant claimed that his brother had been taken by the CID in 2013 and his mother and sister were questioned about the applicant's whereabouts.

   i.      The applicant further claimed that his brother was released on 28 April 2013 and that he was questioned about the injury to his leg as well as about the applicant's whereabouts and involvement with the LTTE.

   b. At [26], the applicant claimed that the same brother that was kidnapped in 2013 was forced to report to the CID once a month over the three to four months before the Tribunal hearing.

   c. At [23], the applicant claimed that his other brother had been taken away and detained in October 2015 and was released in January 2016.

   d. At [66], the AAT considered that the applicant had exaggerated his claims in relation to the incidents with his brothers in 2013 and 2015-16.

   e. Furthermore, at [67], the AAT does not accept that the applicant's brother had been forced to report to the CID once a month.

   f. However, the AAT does not provide any reasons for rejecting these claims other than the gaps in the applicant's knowledge in relation to the particular details of what occurred while his brothers were arrested.

Consideration

Ground 1

1. At the hearing in this Court on 12 July 2017 Mr Hodges appeared for the Applicant and Mr Reilly of Counsel appeared for the Minister. In the result Mr Hodges made submissions only in support of Ground 1 and advised that Grounds 2 and 3 need not be dealt with as separate identifiable Grounds. In substance Mr Hodges’ submissions in support of Ground 1 were to the effect that the Tribunal did not correctly consider paragraph A.1(6) of the UNHCR Guidelines in connection with the Applicant’s brother X, whom it had been claimed was forced to join the LTTE in 2008 and had disappeared and not been seen since 2009 (see [4(d)] above). Paragraph A.1 stated as follows:

   A. Risk Profiles

   A.1 Persons Suspected of Certain Links with the Liberation Tigers of Tamil Eelam (LTTE)

   At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka.180 Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.

   However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

   1) Persons who held senior positions with considerable authority in the LTTE civilian administration,  when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

   2) Former LTTE combatants or “cadres”;

   3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

   4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

   5)LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

   6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

   (emphasis added)

1. In my view Ground 1 fails to establish that the decision of the Tribunal was affected by jurisdictional error for the following reasons.

2. First, the UNHCR Guidelines do not in themselves mandate any definite result. They constitute suggestions as to open or possible results in certain specific situations and circumstances. Paragraph A.1 is directed at persons who, by reason of real or perceived links with the LTTE over and beyond prior residency in the northern and eastern provinces of Sri Lanka of which the LTTE had control, “depending on the specifics of the individual case”, could be exposed to treatment which might give rise to a need for international refugee protection. Sub-paragraph (6) of paragraph A1 was directed at persons “with family links or who are otherwise closely related to persons with the” profiles described in sub-paragraphs (1) – (5).

3. Second, it is clear law that the choice and selection of country information and the weight given to such information is a factual matter for the Tribunal and is not an issue for review in this Court: see SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 at [20] per Collier J and WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 at [32] per Siopis J.

4. To similar effect in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at 159 [19] the Full Court of the Federal Court comprised of Tracey, Murphy and Mortimer JJ approved the statement of law of the primary Judge below as follows:

   [19] … It also noted (at [21]) it was a matter for the Tribunal what country information it obtained and what weight it gave that country information, referring to the reasons of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

5. Third, this Ground fails at a factual level because in my view the Tribunal did meaningfully consider and evaluate the Applicant’s claims to protection arising out of his family’s links to his brother X, as evidenced by the following matters appearing and dealt with in its Decision Record:

   a)at [14] the Tribunal recorded the Applicant’s claim that his brother X was forced to join the LTTE in 2008;

   b)at [15] the Tribunal recorded the claim that X had disappeared in the final days of the war in 2009 and has not been seen since;

   c)at [16] the Tribunal recorded that the Applicant claimed that the harassment suffered by he and his family occurred because of the suspicion of being connected to the LTTE, including because the authorities knew that X had been in the LTTE;

   d)at [17] the Tribunal recorded that the Applicant had said that if he returned to Sri Lanka he believed that he would be taken, would disappear and be killed and that the authorities thought he was associated with the LTTE;

   e)at [18] the Tribunal recorded that the Applicant’s migration agent in the written submissions dated 11 March 2015 had referred to the Applicant’s claims being based on his Tamil ethnic extraction and imputed political opinion of supporting the LTTE. The UNHCR Guidelines were also referred to in this paragraph as having been referred to in the written submissions which had suggested that Applicant was at risk because he would be suspected of LTTE connection;

   f)at [19] the Tribunal recorded specifically that the written submissions of 27 March 2015 had suggested that the Tribunal should give weight to the consideration that the Applicant had a profile which brought him within the UNHCR Guidelines for people at risk in Sri Lanka because of the Applicant’s perceived links to the LTTE;

   g)at [28] the Tribunal recorded that the Applicant had said at the Tribunal hearing that he had never been a member or supporter of the LTTE but that he had lived in areas controlled by the LTTE and had been subject to its instructions. This paragraph of the Decision Record also recorded the Applicant as telling the Tribunal that X had been compelled to join the LTTE in 2008 and had disappeared in the fighting and the final stages of the war in early 2009;

   h)at [38] the Tribunal recorded that it had asked the Applicant why he would be of interest to the authorities or suspected of being connected with the LTTE and noted that the Applicant claimed that he had a brother who had fought with the LTTE and had disappeared in early 2009;

   i)at [53] the Tribunal again expressly referred to the UNHCR Guidelines for people at risk in Sri Lanka;

   j)at [59] the Tribunal recorded that it had considered the Applicant’s evidence and had regard to available and relevant country information, as well as the written submissions made on behalf of the Applicant, including the UNHCR Guidelines which indicated that Tamil people were not at risk per se, but rather those persons with a “real or perceived” link to the LTTE. The Tribunal relevantly concluded in this paragraph as follows:

   [59]… The Tribunal after considering the overall evidence and the country information that has been referred to does not accept that the evidence indicates that the applicant has a “real or perceived” link to the LTTE that would place him at risk if he returned to Sri Lanka.

   k)at [61] the Tribunal again noted the claim of the Applicant that X had been conscripted by the LTTE in 2008 and disappeared in early 2009 and made a further reference to the same claim at [64] and [65] of the Decision Record;

   l)then at [66] the Tribunal made this relevant central finding:     

   [66]… The overall evidence before the Tribunal and the country information does not support the credibility of the applicant’s claims that he and other members of his family are suspected of having LTTE connections. As indicated elsewhere in these reasons the applicant told the Tribunal that he and his father had been cleared of LTTE connections when they were in the displaced persons camp in 2009 and they were released into the community. The Tribunal is prepared to accept that one of the applicant’s brothers was recruited to the LTTE in 2008 and is prepared to accept that brother disappeared in early 2009. The Tribunal does not accept that issue would cause the applicant or other members of his family to be regarded as being connected to the LTTE by Sri Lankan authorities. The Tribunal has referred to the totality of the evidence and the country information and the submissions made on the applicant’s behalf in relation to a number of his claims.

   (emphasis added)

   m)at [71] the Tribunal referred to the UNHCR Guidelines as linking the level of risk to “perceived or real” connections to the LTTE;

   n)at [75] the Tribunal found:

   [75]… As noted elsewhere in these reasons the applicant does not have a risk profile in accordance with the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka. The DFAT country report for Sri Lanka dated December 2015 indicates that the Department assessment is that the risk of torture or mistreatment for the vast majority of returnees is low and the Tribunal is not satisfied that the applicant’s membership of a particular social group of failed asylum seekers who left illegally and sought asylum in a Western country places him at a real chance of serious harm should he return to Sri Lanka either now or in the reasonably foreseeable future. The Tribunal is not satisfied after considering the evidence and country information that there is a real chance of serious harm to the applicant on the basis of this claim.

   (emphasis added)

   o)at [76] the Tribunal expressly found that on the basis of the evidence before it the Applicant had no risk profile as suggested in the UNHCR Guidelines, stating:

   [76]The Tribunal accepts the DFAT reports that have been referred to elsewhere in these reasons in relation to Sri Lanka provide recent and credible information relevant to the applicant’s claims. The 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka do not indicate that Tamil people are at risk per se on that basis but link the risk of harm to other factors such as such as a real or perceived link to the LTTE. The applicant, based on the evidence before the Tribunal, has no such risk profile.

   (emphasis supplied)

6. In short, the Tribunal:

   a)was aware of and meaningfully and responsively took into account the UNHCR Guidelines with reference to the Applicant’s claims concerning his brother X;

   b)meaningfully considered whether or not the Applicant fell within the UNHCR Guidelines by reason of his brother X’s involvement with and link to the LTTE; and

   c)ultimately, in the result found that if the Applicant returned to Sri Lanka he would not be perceived or suspected of being linked to the LTTE.  

Consideration

1. In my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error. The Tribunal did not constructively fail to exercise its jurisdiction in reviewing the Delegate’s decision and the Application filed in this Court is to be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 25 May 2018