ALD15 v Minister for Immigration

[2016] FCCA 2503

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2503

Catchwords:
MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Sri Lankan citizen – unparticularised grounds of review – whether bias – whether wrong issue considered – whether failure to consider relevant material – whether failure to conduct a proper review – whether jurisdictional error.

Legislation:

Evidence Act, s.56(2)

Immigrants and Emigrants Act 1948 (Sri Lanka), s.45

Migration Act 1958 (Cth), ss.36(2)(a) and (aa), 36(2A), 45, 46A(2), 65, 424AA, 474, 476, 499

Prevention of Terrorism (Temporary Provisions) Act 1978 (Sri Lanka)

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
GJ & Ors, Sri Lanka CG [2013] UKUT 00319
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 17
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
WZAVL v Minister for Immigration & Anor [2015] FCCA 2388

WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant: ALD15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 145 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 14 March 2016

Date of Last Submission: 14 March 2016

Delivered at: Perth

Delivered on: 30 September 2016

REPRESENTATION

For the Applicant: In person, with the assistance of an interpreter

Counsel for the First Respondent: Ms E Tattersall

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 145 of 2015

ALD15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 8 April 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision dated 16 March 2015 of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to affirm the Delegate’s Decision to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). The Tribunal Decision appears at Court Book (“CB”) 265-290.

Background prior to the Tribunal proceedings

1. The background to the Tribunal proceedings is as follows:

   a)the applicant, a citizen of Sri Lanka, arrived in Australia on 18 July 2012 as an irregular maritime arrival: CB 1 and 135. On 31 October 2012 the Minister exercised his power to lift the bar under s.46A(2) of the Migration Act: CB 20 and the applicant lodged the Protection Visa application on the same day: CB 21-139;

   b)the applicant essentially contended that he could not return to Sri Lanka as he would be harmed or mistreated on the basis of his Tamil ethnicity, imputed political opinion, his illegal departure and membership of a particular social group of failed asylum seekers from a western country;

   c)in a statutory declaration dated 7 November 2012 (CB 70-73) the applicant specifically claimed that:

   i)in 1993 (after he had returned from India) he was taken by the Criminal Investigation Department (“CID”) in a white van to Planton Point Camp and kept for one week and interrogated about whether he knew specific Liberation Tigers of Tamil Eelam (“LTTE”) members. He was interrogated and assaulted during his time there. Following his release he had to sign in at the CID office every Sunday for one month: CB 70;

   ii)in 1994 he was working in the fields when he was arrested, taken to the CID office and interrogated about whether he had helped the LTTE: CB 70. He was kept for one month before being released: CB 71;

   iii)in 2001 he was arrested and detained for 15 days following the blowing up of a transformer outside of his house. He was beaten and interrogated: CB 71;

   iv)in 2004 he was arrested, vines were tied to his legs and he was dragged along the ground using the vines. He required hospital treatment as a result of injuries to his legs: CB 71;

   v)in 2008 the applicant was in South Africa and while he was there his wife was arrested, kept for one day and assaulted as the CID wanted to know where the applicant was. When the applicant returned to Sri Lanka he was arrested by the CID in Colombo (where he was staying) and kept for ten days. He was accused of wanting to bomb something in Colombo: CB 71;

   vi)in 2011 his uncle was detained and had not been released (as at 7 November 2012): CB 71;

   vii)in April 2012 his sister-in-law's husband was arrested and detained by the CID: CB 71; and

   viii)in April 2012 the CID sent him a letter requesting he attend their office. He refused to go and knew that they would 'come find me because I did not attend' so he left for Australia: CB 71;

   d)on 7 November 2012 the applicant attended an interview before the Delegate: CB 137, and raised further claims that:

   i)in 2005 he was on the beach and witnessed five people being killed: CB 140-141; and

   ii)in 2008 his co-worker was killed by unknown persons and that young people were being abducted: CB 141; and

   e)on 12 August 2013, the Delegate refused to grant the applicant the visa: CB 130-153.

Tribunal proceedings

1. On 14 August 2013 the applicant lodged an application for review to the Tribunal: CB 154-159.

2. The applicant provided a detailed submission including extensive passages and citations of country information to the Tribunal on 28 March 2014 from his migration agent, in which he says that:

   a)he fears persecution based on his race as a Tamil, and imputed political opinion as a supporter of the LTTE, or being anti-government, and for reasons of membership of a particular social group;

   b)refers to the claims made in his 7 November 2012 statutory declaration (as to which see [2(c)] above);

   c)the particular social group is failed asylum seekers from a Western country;

   d)he is likely to be detained and harmed on arrival at the airport in Sri Lanka;

   e)he faces a real risk of significant harm as defined in s.36(2A) of the Migration Act on the basis that LTTE supporters and former members face suspicion and persecution at the hands of the Sri Lankan authorities;

   f)the Sri Lankan government is known for using torture as a means of extracting confessions; and

   g)he was at risk of significant harm arising from cruel and inhuman treatment because Tamils had been subjugated and treated like second-class citizens in Sri Lanka and there had been various hate campaigns to remove them from the country and restrict their livelihoods.

   CB 268 at [7].

3. On 5 December 2014, the applicant attended a hearing before the Tribunal: CB 238 (“Tribunal Hearing”). The applicant appeared before the Tribunal with the assistance of a Tamil interpreter and his migration agent representative: CB 269 at [9].

4. The applicant made written submissions to the Tribunal on 5 December 2014 which included:

   a)a copy of an International Committee of the Red Cross pass (“ICRC Pass”) from 2008 for the applicant’s wife;

   b)a copy of an Indian visa on the applicant’s passport which was not used because the applicant said he heard of boats going to Australia and he was afraid that if he tried to go to India he would be detained at the airport once identified;

   c)a translation of a police summons requesting that he attend the police station on 25 April 2012;

   d)a copy of a translated document headed “Application for Visiting the Detainees at Boosa”;

   e)a letter sent to the applicant on 13 March 2013 advising that his biodata details had been contained in leaked documents, in relation to which the applicant submitted that he was fearful that the Sri Lankan authorities had accessed that information and that it would exacerbate his problems, and that there was no information that the information had not been accessed by Sri Lankan authorities, and the applicant included an advisory opinion by the UNHCR on confidentiality regarding asylum seekers; and

   f)a copy of the applicant’s banking passbook with a submission that it showed evidence that the applicant had sufficient money to support him at a time that he went to South Africa, which the applicant submitted controverted the Delegate’s finding that it was highly likely the applicant went to South Africa because of employment prospects and returned due to difficult working conditions.

   CB 268 at [8].

5. The Tribunal noted that at the Tribunal Hearing:

   a)the applicant alleged persecution from the Sri Lankan Army, and that he might end up in prison, and that persecution continued, and would continue, because he was a Tamil whom it might be thought was linked with the LTTE, although when queried by the Tribunal the applicant said he had never been a member of the LTTE nor been politically active and had never trained with or fought in support of the LTTE: CB 269 at [12];

   b)the Tribunal discussed the claims in the applicant’s 7 November 2012 statutory declaration, including:

   i)the applicant’s travelling to India in 1993 and his subsequent return to Sri Lanka;

   ii)the applicant’s arrest in 1994 because the police thought that his family had supplied rice and vegetables to the LTTE;

   iii)the applicant’s alleged arrest and detention for 15 days in 2001 because someone had blown up the transformer in front of his house, and his being kept at the police station about four kilomietres away from his house: CB 269 at [15];

   iv)the applicant’s arrest in 2004 by the Sri Lankan Army when returning from working in a paddy field: CB 269 at [16];

   v)the arrest and assault of his wife by the Sri Lankan CID when the applicant travelled to South Africa in 2008, which he said he did because there were lots of killings in Sri Lanka, and that his wife who was living in Colombo had been arrested and taken into detention, as was he when he returned to Sri Lanka: CB 269 at [17]; and

   vi)that the applicant’s wife had been taken into detention for one day and told that she would be under observation: CB 269 at [17];

   c)in relation to the applicant’s uncle’s detention in 2011, the applicant said that the uncle was released about six months before the Tribunal Hearing, having been originally detained because he was suspected of having links with the LTTE, and in response to the Tribunal’s inquiries the applicant said that he could not comment upon whether his uncle was no longer of any interest to the authorities as he did not know the situation of his uncle: CB 269-270 at [18];

   d)in relation to his claim that his sister-in-law’s husband had been arrested in April 2012, the applicant said that the sister-in-law’s husband came from a war area, but that he had not subsequently checked whether he had been detained or not, and that when he calls his wife in Sri Lanka he does not speak about his sister-in-law’s husband’s situation: CB 270 at [19];

   e)when questioned about the authenticity of the claimed letter from the CID requesting he attend the CID office, the applicant said that his wife was unable to send the original as he feared that his mail was being checked, and that his wife might get into trouble: CB 270 at [20];

   f)the applicant claimed that he did not go to India because he did not know of any boats going to India, but that if he had known of any boats going to India he would have settled there with his family because it is much closer to Sri Lanka: CB 270 at [21]; and

   g)the applicant said that the Sri Lankan Police and CID would continue to be interested in him notwithstanding the passage of time because they wanted to “banish all Tamils and victimise those who have some property”, and his family had a “very good [farm] business”: CB 270 at [22].

6. The Tribunal also questioned the applicant concerning what had been identified as inconsistencies in his evidence in the Delegate’s Decision: CB 270-271 at [23]. The applicant told the Tribunal “that during the interview he was without food and he was very tired”: CB 270-271 at [23]. The Tribunal specifically noted:

   a)that in relation to the applicant’s travel to South Africa that he was claiming for the first time before the Tribunal that he had bribed his way out of Sri Lanka to travel to South Africa, but had not informed the Department or the Delegate of this because he did not think he had to: CB 271 at [24];

   b)the applicant denied lying in relation to his wife’s detention in 2008 and referred to the production of the ICRC Pass in relation to her: CB 271 at [25]; and

   c)in relation to a claim to have hidden in a church because the authorities started to torture his family, indicated, in response to a question from the Tribunal, that the torture consisted of their “being questioned and harassed”, and when it was put to him that this did not constitute torture, the applicant responded by saying “that there is no peace of heart”: CB 271 at [26].

7. The Tribunal, pursuant to s.424AA of the Migration Act, put adverse independent country information to the applicant including:

   a)the latest report from the UNHCR listing profiles for persons who might be in need of refugee protection upon return to Sri Lanka, and suggesting that the applicant did not appear to fall within any of the profiles identified by the UNHCR: CB 271 at [27];

   b)Department of Foreign Affairs and Trade (“DFAT”) information which indicates that some 250,000 Sri Lankan leave Sri Lanka each year to seek employment overseas and in search of higher wages, and further indicating that the security situation in Sri Lanka had significantly improved since the end of the war and the state of emergency, and that there is “no longer a forced registration of Tamils suggesting monitoring and harassment of Tamils had reduced since the end of the war” and that this might mean that there was not a real chance of the applicant being seriously harmed if he returned to Sri Lanka now or in the reasonably foreseeable future, to which the applicant replied that has suffered, but would not say that the reports were wrong, and then went on to say that hope is to live in peace but that he had experienced persecution in Sri Lanka: CB 271-272 at [28];

   c)explained to the applicant the likelihood that he would be charged with an offence under the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I&E Act”), and fined, for his unlawful departure, to which the applicant replied that “money is not a problem and he can afford to pay”, but repeated that he thought that in Sri Lanka he would be tortured and persecuted; CB 272 at [29];

   d)referred to the sophisticated monitoring mechanisms in Sri Lanka for determining whether or not Tamils were working for Tamil separatism or trying to re-build the LTTE movement: CB 272 at [30];

   e)heard from the applicant that he faced significant harm because he had left Sri Lanka and the authorities were asking about him and that he is not happy being separated from his family: CB 272 at [31]; and

   f)discussed with the applicant the data breach, and his claim with respect to his treatment as a failed asylum seeker if returned to Sri Lanka, in relation to which the applicant said that the authorities in Sri Lanka had been looking for him even after he came to Australia and that he could not live in Sri Lanka any more: CB 272 at [32].

8. The Tribunal agreed to consider further written submissions from the applicant. Further written submissions were received on 19 January 2015, which:

   a)sought to explain the inconsistencies between statements made at the entry interview, Departmental interview and in the applicant’s statutory declaration by reference to the fact that the applicant was only told to speak about his own experiences and that he was very anxious and nervous during the interview: CB 272-273 at [34];

   b)said that the applicant’s having bribed his way out of Sri Lanka to go to South Africa was consistent with country information on the incidence of bribery in Sri Lanka: CB 272-273 at [34];

   c)said that it was not easy for the applicant to discuss his wife’s assault in 2008, and that it was not his intention to mislead in that regard: CB 272-273 at [34]; and

   d)said that there is country information which indicates that there is an ongoing risk of harm to Tamils who are suspected of having assisted the LTTE: CB 272-273 at [34].

Tribunal Decision

1. The Tribunal referred to independent country information in the Tribunal Decision as follows:

   a)the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (December 2012) (“UNHCR Eligibility Guidelines 2012”) concerning the profiles of persons at risk in Sri Lanka: CB 273 at [36];

   b)a decision of the UK Upper Tribunal (Immigration and Asylum Chamber) judgment concerning categories of persons at risk of persecution or serious harm on return to Sri Lanka, citing GJ  & Ors, Sri Lanka CG [2013] UKUT 00319: CB 273-274 at [37]-[38];

   c)numerous DFAT reports, including DFAT Country Reports for Sri Lanka for 2013 and 2015 and a DFAT Thematic Repot on people with links to the LTTE from October 2014 dealing with the return of asylum seekers from overseas and perceived links with the LTTE: CB 274-277 at [39]-[43], and the DFAT Country Report for 2015 dealing with the changes in Sri Lanka following the change of government in January 2015: CB 278-279 at [47];

   d)a 2011 Immigration and Refugee Board of Canada (“IRB Canada”) report concerning the treatment of Tamils returning to Sri Lanka, including failed asylum seekers: CB 278 at [46]; and

   e)various press reports from China and Australia concerning the treatment of failed Sri Lankan asylum seekers returning to Sri Lanka: CB 277-278 at [44]-[45].

2. In the Tribunal Decision the Tribunal:

   a)found that while certain aspects of the applicant's evidence were credible, other important aspects were not credible and it rejected the applicant's evidence as unreliable, exaggerated or fabricated for the purposes of strengthening his protection claims: CB 282 at [70];

   b)accepted it was plausible that the applicant’s brother was arrested whilst working in the fields in 1986 and was never heard from again: CB 283 at [73];

   c)accepted that there had been a long history of disruption, war and conflict due to the different ethnic groups in Sri Lanka and accepted there were reports of Tamils being interrogated and disappearing and that the Sri Lankan authorities had been held responsible for such actions, but found that country reports indicated that circumstances had improved in Sri Lanka and rejected the claim that Tamil people cannot live peacefully in Sri Lanka: CB 283 at [74];

   d)accepted that in 1993 the applicant was detained and questioned by the Sri Lankan authorities and that the applicant may have been mistreated during that questioning and that that deprivation of liberty had amounted to serious harm: CB 283 at [75];

   e)accepted that in 1994 the applicant was working in the fields and was arrested and again questioned in relation to his family supplying food to the LTTE: CB 283 at [76], but found that in light of the defeat and dismantling of the LTTE by 2008 and the applicant's absence of LTTE association it did not consider that the applicant would be perceived as a supporter or sympathiser of the LTTE: CB 286 at [90];

   f)accepted that in 2001 the applicant was arrested, detained and questioned about who had blown up the transformer in front of his house: CB 283 at [77];

   g)accepted that in 2004 the applicant was detained and mistreated and required treatment from the hospital for his injuries: CB 283 at [78];

   h)did not accept that the applicant's wife was arrested or assaulted in 2008, however it did accept, with some doubt, that his wife was detained and assaulted in 1990, but found that that incident did not elevate the applicant's chance of serious harm: CB 283-284 at [79];

   i)was not satisfied that the applicant witnessed the killing of five friends on a beach, and was therefore not satisfied the applicant faced a real chance of serious harm based on that claim: CB 284 at [80];

   j)did not accept that the applicant bribed his way out of Sri Lanka in 2008, and considered that he was no longer a person of interest to the Sri Lankan authorities at that time, and, consequently did not accept that the applicant was detained upon his return to Sri Lanka or that he was harassed or threatened about staying in Colombo: CB 284 at [81];

   k)was not satisfied that the applicant's sister-in-law's husband had been detained or that he was of any adverse interest to the Sri Lankan authorities such that his relationship to the applicant would elevate the applicant's chance of harm: CB 284 at [82];

   l)placed no weight on the April 2012 letter from the CID and found that the applicant did not face a real chance of serious harm for reasons of failing to meet a request from the Sri Lankan authorities to appear: CB 284-285 at [83];

   m)found the applicant’s account of his travel to South Africa to be inconsistent, and that the late addition of a claim to have bribed his way out of Sri Lanka to be a fabrication to plug a gap in his claim, and that the applicant was at the time of no adverse interest to the Sri Lankan authorities, and was able to depart Sri Lanka with the approval of the Sri Lankan authorities: CB 285 at [84];

   n)did not accept that the applicant could not have departed through official channels to travel to India in 2012: CB 285 at [85];

   o)on the basis that the applicant’s profile was such that there would be a lack of adverse interest in him by the Sri Lankan authorities, rejected the claim that it was necessary for the applicant to hide prior to travelling to Australia: CB 285 at [86];

   p)did not accept that there was a real chance of serious harm to the applicant by reason of his claims that the Sri Lankan police and CID wanted to banish all Tamils and victimise those who have property, or that there was a real risk of significant harm for those reasons, observing that persons who are targeted are not targeted by reason of their membership of a particular social group of Tamils with property, but by reason of a person’s particular wealth or property, and that country information had indicated a significant improvement in a relationship between ethnic groups, and that there was evidence of peaceful co-existence in significant parts of Sri Lanka: CB 286 at [87];

   q)did not accept that the applicant’s family had been tortured or faced a real chance of persecution by reason of the applicant’s ethnicity or imputed political opinion, or for any other Convention ground, having regard to the applicant’s clarification of torture as being questioned and harassed and there being “no peace of heart”: CB 286 at [88];

   r)did not accept the applicant is politically active or a person with a profile suggestive of links with the LTTE, and found there was no evidence to suggest the applicant would be regarded as a political dissident, and was therefore not satisfied the applicant faced a real chance of serious harm in that respect now, or in the reasonably foreseeable future: CB 286 at [91];

   s)found that:

   i)the only detail of the applicant released as a result of the data breach was in relation to identity, and there was no information in relation to the lodgement of his Protection Visa application or the details of his Protection Visa application claims: CB 287 at [93];

   ii)accepted that information was available regarding the applicant’s name, date of birth, nationality, gender, details as to when, the reason for and where the applicant was detained, and if other family members were in detention, but that there was no evidence that the data leak included the applicant’s address or any former addresses, phone numbers or contact information, or any information about Protection Visa claims made or about his health, and found that the available information was accessible online for a short period of time only before it was removed, and the information was not a visible part of the report and was not easily accessible: CB 287 at [94]; and

   iii)was satisfied that the information available as a result of the data breach did not include the applicant’s current Protection Visa claims, and did not accept the applicant’s submission that there was a real chance that the Sri Lankan government may have used the applicant’s personal details and identification to access information about him, and did not accept that the applicant was of any interest, adverse or otherwise, to the Sri Lankan government, and therefore did not accept that the applicant would face serious harm because of the data breach: CB 287 at [95];

   t)based on country information, accepted that there would likely be a level of monitoring of the applicant upon return to Sri Lanka on the basis of his being a returned asylum seeker, but considered the chance of the applicant being seriously harmed for one or more Convention reasons was remote at best: CB 287 at [96];

   u)found that there was a significant likelihood that the applicant would be charged and prosecuted under the I&E Act for his illegal departure, but was satisfied that the I&E Act was a law of general application: I&E Act, s.45, and did not give rise to persecution under the Refugees Convention: CB 287-288 at [97]; and

   v)considering the claims for protection as a refugee both individually and cumulatively found that the applicant did not have a well-founded fear of persecution if returned to Sri Lanka now or in the reasonably foreseeable future: CB 288 at [98]-[99].

1. In its consideration of the complementary protection criteria the Tribunal:

   a)did not accept that the applicant’s claim of unhappiness as a consequence of separation from his family constituted significant harm for the purposes of complementary protection claims: CB 288 at [101];

   b)on the basis of the Tribunal’s earlier finding that he was not a person of interest to the Sri Lankan authorities, rejected the proposition that he faced a real risk of significant harm for reasons of perceived LTTE links or support: CB 288 at [102]; and

   c)found that:

   i)the applicant did not have a profile which would attract the interests of Sri Lankan authorities, and that the applicant did not face a real risk of torture in Sri Lanka: CB 288-289 at [103];

   ii)there was no demonstrated intent to cause cruel and inhuman treatment or punishment to Tamils in Sri Lanka: CB 289 at [104];

   iii)any fine under the I&E Act would not amount to significant harm: CB 289 at [105]; and

   iv)prison conditions in Sri Lanka were poor and overcrowded, but did not accept that a relatively short period in prison on remand amounted to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted, or that it amounted to an act which could be regarded as cruel or inhuman, or that it amounted to an act or omission which is intended to cause extreme humiliation which is unreasonable: CB 289-290 at [106]-[109].

2. The Tribunal therefore found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there would be a real risk that he would suffer significant harm: CB 290 at [110].

3. The Tribunal found the applicant did not satisfy the criterion under s.36(2)(aa) or s.36(2)(a) of the Migration Act and the Delegate’s Decision was affirmed: CB 290 at [111]-[114].

Judicial Review Application

1. The Judicial Review Application as filed relies on the following grounds:

   1.Jurisdictional error.

   2.Bias based on conscious or unconscious prejudice

   3.Identifying a wrong issue by ignoring relevant material with wrong question.

Ground 1

1. Ground 1 is an unparticularised assertion of jurisdictional error by the Tribunal. An unparticularised assertion of jurisdictional error cannot succeed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 at [26] per Judge Lucev (and cases there cited).

2. Ground 1 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Ground 2

1. It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 17 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”).

2. The applicant has made no attempt to comply with the requirement that this serious allegation of bias be firmly and distinctly made and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Further, there is no evidence:

   a)that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any proper evaluation of materials relevant to the making of the Tribunal Decision: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or

   b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.

   Ground 2 is not therefore, in its terms, made out.

3. Like ground 1, ground 2 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [17] above.

4. Ground 2 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Ground 3

1. Subject to exercising its power in a manner which does not manifest jurisdictional error, it is for the Tribunal to consider the claims made by the applicant: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321, and to identify the material that it finds relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.

2. In this matter the Tribunal considered the claims made by the applicant, and in so doing did not identify a wrong issue based on a wrong question, or, ask itself the wrong question. Rather, the Tribunal:

   a)set out seemingly relevant country information: CB 273-279 at [35]-[47];

   b)correctly identified the relevant law: CB 279-281 at [48]-[62];

   c)set out, considered and made findings in relation to the applicant’s credibility, claims, evidence and materials in a very detailed manner: CB 268-273 at [7]-[34]; and

   d)drew conclusions that were reasonably open to it on the evidence and materials before it, for the reasons it gave: CB 290 at [111]-[114].

3. Like grounds 1 and 2, ground 3 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [17] above.

4. Ground 3 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

The applicant’s affidavits – additional grounds of judicial review – objections to annexures

The applicant’s affidavits

1. On 8 April 2015, together with the Judicial Review Application, the applicant filed an affidavit affirmed on 5 April 2015 which annexed the Tribunal Decision, and to which no objection is taken.

2. The applicant filed a further affidavit in these proceedings on 17 February 2016 (“Applicant’s February 2016 Affidavit”).

3. The Applicant’s February 2016 Affidavit provides as follows:

   (1) I am the Applicant in this case ALD 15, No PEG145 of 2015 before the Federal Circuit Court of Perth Division which has been listed to be heard on the 14^th of March 2016 at 21.15pm [2.15pm].

   (2) I submit that the decision of the Tribunal was affected by jurisdictional error by reason that the Tribunal applied the wrong test and was biased.

   (3) The relevant legislation is the Tribunal Amalgamation Act, 2015, item 15AG of sch.9, and the Migration Act 1958, ss.36, 474.

   I also rely on section 75(1) of the of the Australian Constitution dated 1 July 1900, which relates to any matter ar[i]sing under any treaty: in this instance the Refugee Convention. The Australian government is a signatory to this Convention.

   (4) In terms of the UNRCR eligibility guidelines for assessing the international protection needs from asylum seekers from Sri Lanka. It has been specifically stated that there is a need for international refuge protection to persons suspected of certain links with the Liberation Tigers of Tamil Elam.

   (5) As there had been a data breach in my case the Sri Lankan authorities have a suspicion and belief that I have certain links with the Liberation Tigers of Tamil Elam.

   (6) The Tribunal only cited the Immigration and Emigration Act of Sri Lanka and did not take into account the Prevention of terrorism Act no 48 of 1979, which is a part of the permanent law of that country and under the provisions of which I was arrested and detained while in Sri Lanka.

   (7) I submit in document marked 1 a report from Sri Lanka which refers to the visit of the Commissioner of the UNHCR to Sri Lanka and the ongoing investigations into human right abuses of the Sri Lankan armed forces against the Sri Lankan Tamils living in the north and east of Sri Lanka.

   (8) I submit excerpts from the Prevention of Terrorism Act marked II.

   I submit, therefore, that I have at present a well-founded fear of returning to Sri Lanka given the present circumstances.

4. The Applicant’s February 2016 Affidavit annexes two documents, marked I and II respectively, which are:

   a)a copy of a media article from “The Island Online” dated 10 February 2016 and which appears to have been downloaded on 11 February 2016 (“The Island Online Article”); and

   b)a document titled “Fact Book - Sri Lanka’s Prevention of Terrorism Act” (“Fact Book Extract”).

   Neither the Island Online Article nor the Fact Book Extract was before the Tribunal.

The objections to annexures

1. The Minister objected to the Island Online Article and the Fact Book Extract being read on the basis of relevance.

2. The Island Online Article post-dates the Tribunal Decision by almost eleven months. It relates to a four day visit in February 2016 to Sri Lanka by the United Nations Human Rights Commissioner. The Island Online Article could not therefore have been before the Tribunal, and is therefore irrelevant to the issue of judicial review of the Tribunal Decision. In any event, it is in very general terms, and, particularly in light of the Tribunal’s finding that the applicant was of no interest to the Sri Lankan authorities and was not to be imputed with pro-LTTE opinions, is of no assistance to the applicant. Because The Island Online Article is irrelevant to the Court’s judicial review function in these proceedings, it is inadmissible: Evidence Act, s.56(2), and will be struck out of the Applicant’s February 2016 Affidavit.

3. In relation to the Fact Book Extract it consists of:

   a)a statement attributed to the International Commission of Jurists concerning the nature of the powers conferred by the Prevention of Terrorism (Temporary Provisions) Act 1978 (Sri Lanka) (“POT Act”); and

   b)various extracts from various sections of the POT Act.

4. Given that the Tribunal concluded, as a matter of fact, that the applicant was of no interest to the Sri Lankan authorities and was not to be imputed with pro-LTTE opinions: CB 286 at [91], the provisions of the POT Act are irrelevant to the Court’s judicial review function. Alternatively, the applicant invites the Court to substitute its own view in relation to the application of the POT Act to the applicant, which can only require the Court to arrive at a different view as to whether the applicant would be imputed with pro-LTTE opinions, and would be of interest to the Sri Lankan authorities. To undertake that task is to engage in fact-finding for the purposes of merits review, which is not a permissible task for this Court on judicial review of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). In the circumstances, the Fact Book Extract is therefore irrelevant, and inadmissible: Evidence Act, s.56(2), and it will be struck out of the Applicant’s February 2016 Affidavit.

Additional grounds of judicial review

1. It is arguable that the content of the Applicant’s February 2016 Affidavit gives rise to the following additional grounds of judicial review:

   a)at [2] and [3] that the Tribunal Decision was affected by jurisdictional error by reason that the Tribunal applied the wrong test and was biased (“Ground 4”);

   b)at [4] that the applicant falls into the category of persons suspected of certain links with the LTTE in terms of the UNHCR Eligibility Guidelines and therefore is at risk if forcibly returned to Sri Lanka (“Ground 5”);

   c)at [4]-[5] that as the applicant falls into the category of persons suspected of certain links with the LTTE, that link is reinforced by the data breach, and the applicant is therefore at risk if forcibly returned to Sri Lanka by reason of a suspicion of certain links with the LTTE (“Ground 6”); and

   d)at [6]-[8] that the Tribunal failed to take into account relevant material, namely the POT Act, under which the applicant would be arrested and detained, or suffer ongoing human rights abuses at the hands of the Sri Lankan authorities, if he was returned to Sri Lanka (“Ground 7”).

2. Each of the arguably additional grounds of judicial review, enumerated above as Grounds 4, 5, 6 and 7 respectively, is considered separately below.

Ground 4

1. Ground 4 does not set out what wrong test was applied by the Tribunal, or how it is that the Tribunal was said to be biased. As such, like grounds 1, 2 and 3, ground 4 is an unparticularised assertion of jurisdictional error which cannot succeed: see [17] above. Insofar as ground 4 alleges bias the Court repeats what has been said in relation to bias in respect of ground 2 above: see [19]-[20] above, and the claim of bias is not made out.

2. In the circumstances, ground 4 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

3. If ground 4 was intended to be by way of introduction to what the Court has enumerated as grounds 5, 6 and 7, those grounds fail for reasons set out below, and the Court further notes that none of those grounds make out the allegation of bias in the manner required, and discussed at ground 2 above: see [19]-[20] above.

Ground 5

1. Ground 5 must fail because the Tribunal concluded, as a matter of fact, that the applicant was of no interest to the Sri Lankan authorities, and was not be imputed with pro-LTTE opinions: CB 286 at [91]. The Tribunal did so after lengthy consideration of the relevant evidence and country information, the latter including consideration of the UNHCR Eligibility Guidelines 2012, various DFAT reports, a report from the IRB Canada, a decision of the UK Upper Tribunal (Immigration and Asylum Chamber) and press reports: CB 273-279 at [35]-[47]. For the Court to arrive at a different view would simply be to engage in fact-finding for the purposes of merits review, which is an impermissible task for this Court on judicial review of the Tribunal Decision: Wu Shan Liang.

2. Ground 5 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Ground 6

1. The Tribunal expressly considered whether or not the data breach may give rise to the applicant being of any interest, adverse or otherwise, to the Sri Lankan government and whether he faced a real chance of serious harm as a consequence of the data breach, and concluded that it did not accept that there was a real chance that the applicant would face serious harm because of the data breach and release of his personal information if he returned to Sri Lanka now or in the reasonably foreseeable future: CB 287 at [95], and see also CB 288-289 at [102] and [103]. There is nothing obviously erroneous about the Tribunal’s finding of fact in this respect.

2. Given that the Tribunal considered the data breach and did so in the context of whether or not the applicant might be of any interest, adverse or otherwise, to the Sri Lankan government and concluded that that would not be the case, for the Court to make a different factual finding would be to use a judicial review application to engage in impermissible merits review: Wu Shan Liang.

3. Ground 6 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Ground 7

1. As set out at [34] and [40] above the POT Act is irrelevant to the Court’s judicial review function in light of the Tribunal’s findings that the applicant was of no interest to the Sri Lankan authorities and was not to be imputed with pro-LTTE opinions. Again, for the Court to take a different view would be to engage in fact-finding for the purposes of merits review, an impermissible task upon judicial review by this Court: Wu Shan Liang.

2. Ground 7 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Applicant’s written submissions at hearing – further additional grounds of judicial review

1. At the hearing of this matter the applicant handed up further written submissions as follows:

   1. The Second Respondent followed the directions of the First Respondent in regard to the assessment of the situation in Sri Lanka.

   2. Hence, the Second Respondent went by the assessment given by the Department of Foreign Affairs and Trade and did not in this process give the needed weightage to the reports from other international organisations like Amnesty International.

   3. Reference was made by the Second Respondent only to the Immigration and Emigration Act of Sri Lanka and failed to apply and study the provisions of the Prevention of Terrorism Act under which most the human right abuses were committed by the armed forces and this has now been made a part of normal law of the country. Earlier, it was only operative for a few years. All the arrest and detention by the Sri Lankan armed forces are made under the provisions of this Act. All the arrests and detentions that I suffered was due to this Act, which gives tremendous powers to the armed forces to arrest and detain and such acts cannot be reviewed by the law courts of Sri Lanka.

   4. This is reason why I submit that there was judicial error made by the Second Respondent.

   5. The present situation in Sri Lanka is the same as when the Second Respondent examined my claims. In fact the government of Sri Lanka is failing to hold a proper inquiry into human right abuses done by the armed forces on the Sri Lankan Tamils on a large scale.

   6. I have a fear that my name is in the data of the Sri Lankan armed forces and authorities, and that I will be arrested and detained under the Prevention of Terrorism Act.

   7. The Commissioner of Human Rights of the UNHCR on a recent visit to Sri Lanka had stated as reported in the international media that no action had been taken by the Sri Lankan government to investigate human right abuses in that country, committed by the armed forces.

   8. I, therefore, have a well-founded fear of retuning to Sri Lanka mainly due to the fact that I fear that I will be investigated under the Prevention of Terrorism Act as a perceived supporter of the Liberation of Tamil Tigers of Tamil Elam and therefore one who stands for a independent state for the Sri Lankan Tamils in the North and East of the country.

   (“Applicant’s Hearing Submissions”).

2. It is arguable that the Applicant’s Hearing Submissions give rise to the following further additional grounds of judicial review:

   a)that the Tribunal failed to conduct a proper review of the Delegate’s Decision because it adopted the reasons of the Delegate with respect to the assessment of the situation in Sri Lanka (“Ground 8”);

   b)that other than DFAT Reports, the Tribunal failed to have regard to recent and relevant country information, or failed to give any or any sufficient weight to recent and relevant country information, including “reports from other international organisations like Amnesty International” (“Ground 9”); and

   c)that the Tribunal failed to have regard to the POT Act, and to human rights abuses committed by the Sri Lankan authorities under the POT Act, in relation to the applicant as a person who would be a person perceived to support the LTTE, and therefore one who stands for an independent state for Sri Lankan Tamils in the North and East of Sri Lanka (“Ground 10”).

Ground 8

1. The assertion that the Tribunal failed to conduct a proper review of the Delegate’s Decision because it adopted the reasons of the Delegate with respect to the assessment of the situation in Sri Lanka is wholly at odds with the Tribunal Decision. In a careful and thoughtful manner over 26 pages and 114 paragraphs the Tribunal has:

   a)set out the application for review including all of the relevant background and claims made by the applicant up to and including at the Tribunal Hearing: CB 266-273 at [1]-[34];

   b)set out independent country information as indicated above: see [11] above and CB 273-279 at [35]-[47];

   c)set out the relevant law with respect to the refugee and complementary protection criterion and noted the requirement to take account of policy guidelines by reason of a Ministerial Direction under s.499 of the Migration Act: CB 279-281 at [48]-[62];

   d)set out its consideration of the claims and evidence by reference to the country of reference, findings on credibility, the applicant’s claims, both as to his refugee and complementary protection claims, and drew conclusions in respect thereof: CB 281-290 at [63]-[114],

   and did so in a manner which does not indicate at any point an adoption, slavishly or otherwise, of the Delegate’s Decision, but rather a thorough and independent assessment of the situation in Sri Lanka, against the totality of the law, the country information and the applicant’s claims.

2. Ground 8 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Ground 9

1. It is well established that the selection and weight given to country information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ. In this case it is fair to observe that the Tribunal did place considerable emphasis upon the various DFAT reports that it referred to, but it was entitled to do so as those reports were both relevant and relatively recent. Furthermore, it did have regard to reports from other international organisations, including the UNHCR, the IRB Canada, and to Chinese and Australian press material, and a relevant decision of the UK Upper Tribunal (Immigration and Asylum Chamber) concerning the situation in Sri Lanka.

2. The independent country information set out was, as observed above, both relevant and relevantly recent, and was therefore country information which it was appropriate for the Tribunal to both have regard to, and rely upon, in reaching the Tribunal Decision.

3. Having regard to the relevant law with respect to country information, and the country information considered and applied by the Tribunal, in this case, the Court finds that there was no jurisdictional error in the Tribunal Decision as asserted by ground 9. Ground 9 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Ground 10

1. Ground 10 cannot be made out in relation to the POT Act, for as is set out above: see [34] and [40] above, the POT Act is irrelevant to the Court’s judicial review function in light of the Tribunal’s finding that the applicant was of no interest to the Sri Lanka authorities and was not to be imputed with pro-LTTE opinions, a finding which was open on the evidence and materials before the Tribunal. Further, insofar as it is alleged that the Tribunal failed to have regard to human rights abuses committed by the Sri Lanka authorities under the POT Act, and the perception that the applicant was a person perceived to support the LTTE, the Tribunal examined the circumstances in relation to the applicant’s being, or being perceived to be, a person who either supported, or provided support for, the LTTE, and found that the applicant was not a person to be so perceived, and did so primarily on the applicant’s own evidence, read in conjunction with the relevant country information. The Tribunal was therefore not obliged to have regard to the terms of the POT Act.

2. Ground 10 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Conclusions and order

1. The Court has concluded that:

   a)none of the grounds of review, in either the grounds of the Judicial Review Application, or the additional grounds in the Applicant’s February 2016 Affidavit, or the further additional grounds in the Applicant’s Hearing Submissions have been made out;

   b)no jurisdictional error has been established in the Tribunal Decision, and the Tribunal Decision is therefore a privative clause decision within the meaning of s.474 of the Migration Act; and

   c)it follows from (a) and (b) that the Judicial Review Application (inclusive of all the additional grounds) must be dismissed, and there will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 30 September 2016