ALH16 v Minister for Immigration and Border Protection
[2018] FCA 1468
•27 September 2018
FEDERAL COURT OF AUSTRALIA
ALH16 v Minister for Immigration and Border Protection [2018] FCA 1468
Appeal from: ALH16 v Minister for Immigration and Border Protection [2018] FCCA 455 File number(s): VID 313 of 2018 Judge(s): O'CALLAGHAN J Date of judgment: 27 September 2018 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – whether Tribunal erred in considering 2012 DFAT information – where information considered was contradicted by more recent DFAT information – where information considered was contradicted by other country information that appellant put before Tribunal – appeal allowed Legislation: Migration Act 1958 (Cth), ss 36(2), 65 Cases cited: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Date of hearing: 4 September 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: Dr A McBeth Solicitor for the Appellant: Allens (Pro Bono) Counsel for the First Respondent: Ms N Campbell Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 313 of 2018 BETWEEN: ALH16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
27 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.The appellant has leave to appeal in the form of the Amended Draft Notice of Appeal dated 21 August 2018.
2.The appeal be allowed.
3.Orders 1 and 2 of the decision of the Federal Circuit Court of Australia made on 1 March 2018 be set aside.
4.A writ of certiorari be issued to quash the decision of the Administrative Appeals Tribunal dated 18 February 2016.
5.The matter be remitted to the Administrative Appeals Tribunal to determine the appellant’s application according to law.
6.The first respondent pay the appellant’s costs of this proceeding and in the proceeding in the Federal Circuit Court of Australia, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
Introduction
This is an appeal from a decision of a judge (the primary judge) of the Federal Circuit Court of Australia (the Federal Circuit Court) made on 1 March 2018: ALH16 v Minister for Immigration and Border Protection [2018] FCCA 455, dismissing an appeal from a decision of the Administrative Appeal Tribunal (the Tribunal) which had affirmed a decision of a delegate (the Delegate) of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the MigrationAct).
In this court, the appellant contends that the primary judge erred:
(1)in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal relied on a Department of Foreign Affairs and Trade (DFAT) report dated 29 November 2012 entitled “Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications” (the 2012 DFAT Report). The 2012 DFAT Report provided that “there have not been reports of mistreatment of returnees of Australia” notwithstanding that there were other materials before the Tribunal that contradicted that information. Those materials include the DFAT Country Information Sri Lanka dated 16 February 2015 (the 2015 DFAT Report) and a report from the Edmund Rice Centre published in August 2014 regarding the situation of returnees to Sri Lanka (the Edmund Rice Report) (Ground 1); and
(2)in failing to consider ground five of the appellant’s application, which was that the Tribunal failed to make a finding on a material fact or a substantial, clearly articulated claim. This claim was that officers from the Sri Lankan army had visited the appellant’s house in 2012 in connection with his obligation to report to the army, and the appellant contends that the Tribunal only made a finding as to whether the Criminal Investigation Department (the CID) of the Sri Lankan police made that visit (Grounds 2 & 3).
For the reasons that follow, the appeal must be allowed.
Background
The appellant is a citizen of Sri Lanka who is of Tamil ethnicity and Hindu religion.
He arrived in Australia as a so-called “irregular maritime arrival” on 22 July 2012. The appellant applied for the visa on 18 December 2012.
In his statutory declaration made in support of his application, the appellant claimed to fear harm on the basis of his imputed association with the Liberation Tigers of Tamil Eelam (LTTE), his Tamil ethnicity, his status as a Tamil fisherman and his illegal departure from Sri Lanka.
The appellant participated in an interview with the Delegate on 13 September 2013. The Delegate refused to grant the appellant a visa on 10 December 2013.
The appellant applied to the Tribunal for review of that decision on 12 December 2013. The appellant's representatives provided a submission in support of his review application.
The appellant was invited to attend a hearing on 9 June 2015 where he was represented and assisted by a Tamil interpreter.
On 18 February 2016, the Tribunal affirmed the Delegate’s decision.
The appellant filed an application in the Federal Circuit Court on 10 March 2016. On 26 May 2017, the appellant's representative filed an amended application and written submissions. A further amended application was filed by the appellant on 9 June 2017.
The Federal Circuit Court dismissed the amended application on 1 March 2018.
On 22 March 2018, the appellant appealed from that decision to this court.
The Tribunal’s findings
In light of the grounds of appeal relied on in this court, it is not necessary to record in detail the Tribunal’s findings in relation to the appellant’s claims. In short, the Tribunal accepted, as the Minister’s written submissions summarised, that the appellant was displaced to Vanni during 2006 and that he was questioned by the army on his return to Point Pedro. The Tribunal was satisfied that the appellant was not suspected of being involved with the LTTE upon his return to Point Pedro. The Tribunal accepted that the appellant had been screened and monitored in Point Pedro for links to the LTTE and may have been placed on reporting conditions at the end of the conflict in 2009.
The Tribunal did not accept that the appellant was questioned or made to report because he was suspected of being involved with the LTTE because he had spent 10 days in Vanni in 2006, or that he reported to the Army camp every week until he left Sri Lanka. The Tribunal found:
The Tribunal does not accept that the applicant reported to the Army camp every week until he left Sri Lanka. The Tribunal accepts that the Army has monitored the Tamil population in the north for any signs of a re-emergence of the LTTE. By mid-2012, however, most of the suspected LTTE associates who had been detained in 2009 were regarded as “rehabilitated” and released and the Tribunal does not accept that the applicant, who had no involvement with the LTTE, would have been required to continue to report every week for three or more years.
The applicant has submitted that he also fears harm from paramilitary groups because of an imputed association with the LTTE. As the Tribunal does not accept that the applicant was imputed to have an LTTE association, it does not accept that he is at risk of harm from pro-government paramilitary groups.
The applicant claims that two Sinhalese speaking men from the intelligence services came to his home and asked for his whereabouts within two months after he left Sri Lanka. The Tribunal noted that the Central Intelligence Division of the police (CID) have visited the homes of people they suspect departed Sri Lanka illegally. The applicant said the visit was related to the reporting and that many people from his village came to Australia and their families have not been visited. The Tribunal does not accept that the CID visited the applicant’s home because of anything to do with the reporting. The Tribunal does not accept that the applicant was still reporting to the Army in 2012. The Tribunal is aware that the authorities have interviewed the families of persons suspected of departing Sri Lanka illegally and is satisfied that the visits were in relation to the applicant’s illegal departure not an imputed LTTE association. It is an offence to leave Sri Lanka irregularly and there will be ramifications for the applicant on return which are discussed below.
(Footnotes omitted.)
The Tribunal did not accept that the appellant was suspected of being involved with the LTTE in 2006, in the three years that followed, or in 2009. As the Tribunal did not accept that the appellant had been involved in the LTTE, it did not accept that he was at risk of harm from pro-government paramilitary groups. It did not accept the appellant’s claim that two Sinhalese speaking men from the intelligence services came to his house and asked for his whereabouts within two months after he left Sri Lanka.
In relation to the appellant’s claim to fear harm as a returnee or a failed asylum seeker, the Tribunal said:
When asked if he fears any harm because he left Sri Lanka and came to Australia, the applicant stated that his life will be in danger because the Army told him not to leave the country and because the Army’s suspicion that he was involved with the LTTE will be confirmed by his departure. He stated that the Army have his details and he will have problems at the airport on return. The applicant’s representative made submissions on mistreatment of returnees.
…
DFAT advised in 2012 that:
R.2 Post has not receive any evidence to support allegations of misstatement of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.
We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the Tamils Sri Lankans they have facilitated.
We have contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report “Sri Lankan Tamils tortured on return from the UK” [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:
“We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture”
“On 16 August FCO and UKBA met with Human Rights Watch and Freedom from Torture to discuss their allegations. UKBA have written to them since and received no response” and are due to meet Freedom from Torture again in November.”
We are also aware of a story on Tamil Net [CX299934] claiming a Tamil British national visiting Sri Lanka was detained by the CID in Colombo from 3 to 9 October and “allegedly tortured under suspicion of LTTE links”. The article claims the person was released after a ransom was paid to CID. AFP at post has followed up on the claim with the Sri Lankan Police CID (including with the officer named in the story) who categorically denied the allegation.
DFAT has advised that it is aware of a small number of allegations of torture or mistreatment by returnees and that verifying these allegations is difficult because they have been made anonymously and to third parties. DFAT has also noted that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of mistreatment and “assesses the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.”
For the reasons set out above, the Tribunal does not accept that the applicant has been imputed with an LTTE association or that the CID wants to question him in relation to suspected LTTE activity. It therefore does not accept that the Army told him not to leave Sri Lanka or that the authorities will view his departure from Sri Lanka as confirmation of an LTTE association. The Tribunal is satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures outlined above by DFAT. The Tribunal does not accept that this questioning and procedure amounts to serious or significant harm. The Tribunal places weight on the DFAT advice above that there have not been reports of mistreatment of returnees from Australia. Landinfo also concluded in 2012 that there is nothing to indicate that returning Tamils are treated in any particular way or are at risk of violations.
The Tribunal does not accept that the applicant will be imputed with an LTTE association because he applied for asylum in Australia or that he will suffer any harm as a result. More than a thousand failed asylum seeks have been returned to Sri Lanka from Australia since 2012 and the country information before the Tribunal does not indicate that they have suffered any harm on return because they applied for asylum in Australia.
The Tribunal does not accept that there is a real chance or a real risk that the applicant will be harmed at the airport or on return to Point Pedro.
At paragraph [25] of its reasons (set out above), the Tribunal stated that “[t]he applicant’s representative made submissions on mistreatment of returnees.” Other than that reference, the Tribunal otherwise does not refer to those submissions, that were made by a solicitor on the appellant’s behalf, which included the following:
The current situation in Sri Lanka: Returned Failed Asylum Seekers
We respectfully ask that you please give consideration to a recent report from the Edmund Rice Centre’s regarding the situation of returnees to Sri Lanka published in August 2014:
“..failed asylum seekers also of Sinhalese background have suffered cruel and degrading treatment on their return to Sri Lanka. Mistreatment is not restricted to those who are involuntarily returned. The UN Committee Against Torture (Concluding Observations November 2011) expressed its concern about “the continued and consistent allegation of widespread use of torture and other cruel, in human or degrading treatment of suspects in policy custody, especially to extract confessions or information to be used in criminal proceedings. The Committee is further concerned at reports that suggest that torture and ill-treatment perpetrated by state actors, both the military and the police, have continued in many parts of the country after the conflict ended in May 2009 and is still occurring in 2011.”
“S” attempted to seek asylum twice in Australia. He and his brother were returned from Christmas Island after the first attempt in 2010, he was detained by the CID held in Negomobo Prison for a short period and later released while his brother remained in prison. During this period, however, he was variously detained and interrogated by CID officers. He was severely beaten during various interrogations in the CID headquarters in Colombo. He alleges that during one of these sessions he was forced to lie of the floor while an official from the Australian High Commission visited the section and both individuals were visible to one another. S was then taken to another room and the beatings recommenced. He was also beaten severely in front of his wife, four year old son and his mother at his house by a CID officer. He was re-detained in Negombo Prison where he remained for two years without his case coming to trial.
In 2013 he attempted to flee again, this time by plane but was arrested at Colombo Airport and was again imprisoned in Negombo Prison where he stayed, again without his case being heard, for another 5 months when he was finally able to pay bail. He described the conditions in the Prison as appalling: 200 men living, sleeping and eating in one room of 80sqm. They were only allowed 2 hours for everyone to wash each day, meaning that many could not. While he was there he alleges over 270 men, all failed asylum-seekers were taken to the local court to be charged under Section 45C of the Immigrants and Emigrants Act. Many of these men, he says had been returned from Australia. He was able to supply the details of a smaller number of these men and verification is still under way.
“O” came by boat to Christmas Island in 2012 but, under the enhanced screening process was then quickly sent back to Sri Lanka three months later. On arrival at Colombo airport, he was arrested by CID officers and then was taken to Negombo Prison where he was also charged under s45C of the Immigrants and Emigrants Act. He then remained in prison for another 8 months suffering routing beatings by prison guards. He also reported extremely crowded and unsanitary conditions in the prison.
He was released after he was able to pay bail and surety of almost $AUD18,000, an extraordinary amount for a Sri Lankan fisherman. His case still not been heard, the latest adjournment is until April 2015. In the meantime he must report to CID headquarters in Colombo every month to sign his bail papers. He has been beaten during some of these visits where he continues to be questioned and threatened about others of his family who have fled to Australia. CID officers claim to know that those family members are in Australia likely to be returned and who will suffer the same fate as him.
The Tribunal did not accept that the appellant had been imputed with an LTTE association or that the CID wished to question him in relation to suspected LTTE activity. It did not accept that the Army told him not to leave Sri Lanka or that the authorities would view his departure from Sri Lanka as confirmation of an LTTE association. On the basis of the above findings, the Tribunal found that the appellant would not be subjected to any detention or interrogation on return to Sri Lanka other than standard questioning and procedures, as outlined by DFAT. The Tribunal did not accept that there was a real chance or a real risk that the appellant will be harmed at the airport or on return to Point Pedro.
For the reasons it gave, the Tribunal was therefore not satisfied that the appellant was a person in respect of whom Australia owed protection obligations under ss 36(2)(a) or (aa) of the Migration Act.
Grounds of appeal
The appellant relied on an amended notice of appeal that raised three proposed grounds of appeal. The Minister concedes ground 2 (that the primary judge did not deal with ground 5 below) and the parties agree that I should decide the question. The grounds are:
Ground 1: The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal's reliance on a 2012 DFAT report “that there have not been reports of mistreatment of returnees of Australia”, in light of the 2015 DFAT reports that indicated that DFAT was aware of allegations of torture or mistreatment of returnees to Sri Lanka and country information submitted by the appellant providing reports of mistreatment of returnees, constituted a misunderstanding of the Tribunal's lawful task on review.
Particulars
(a) The most recent DFAT country information assessment of Sri Lanka, being a report from 2015 which was before the Tribunal, expressly contradicted the earlier 2012 report on which the Tribunal relied.
(b) It was not open in the circumstances for the Tribunal to rely on the 2012 DFAT report in preference to the contrary information in the 2015 DFAT report.
(c) The Tribunal failed to have regard to country information submitted by the appellant which likewise contradicted the 2012 DFAT report.
(d) The Federal Circuit Court's finding at [16] that it is a matter for the Tribunal what weight it gives to particular country information, and thus no error was demonstrated in the manner in which the Tribunal considered the country information in relation to the applicant, was in error in these circumstances.
Ground 2: The Federal Circuit Court erred in failing to deal with ground 5 in the appellant's application.
…
Ground 3: The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to make a finding on a material fact or a substantial, clearly articulated claim.
Particulars
(a) The appellant claimed that officers from the Sri Lankan army had visited his house in 2012 in connection with his obligation to report to the army. He specifically told the Tribunal that the officers were from the army and not from the Criminal Investigation Division (CID) of the police.
(b) The Tribunal at [19] addressed a claim that officers from the CID visited the house. It did not address his claim that the house had been visited by army officers.
The decision of the primary judge
Before the Federal Circuit Court, the appellant contended by ground 2 (substantially the same as ground 1 in this court) that the Tribunal had fallen into jurisdictional error by relying on a “superseded report” from (being the 2012 DFAT Report) in preference to the more recent 2015 DFAT Report that contradicted the earlier report on a similar point.
The primary judge dealt with that ground as follows:
15. Ground two asserts that the Tribunal erred in placing weight on a 2012 DFAT report on the question of mistreatment of failed asylum seekers returning from Australia to Sri Lanka and failed to have regard to more recent country information contained in a 2015 DFAT report.
16. The Tribunal did in fact refer to the 2015 DFAT report at [28]. The Tribunal also referred to and relied upon a 2012 DFAT report. The weight that the Tribunal gives to particular country information is a matter for it. No error is demonstrated in the manner in which the Tribunal undertook its task to consider the country information in relation to the applicant. The Tribunal was not required to expressly refer to all the country information submitted on behalf the applicant. No error is apparent in the manner in which the Tribunal approached its task in relation to this ground.
(Footnotes omitted.)
Ground 2 in this court is, as I say, conceded and the parties ask me to decide the point which the primary judge overlooked - the point being ground of appeal 3.
Consideration
In my view, both grounds contained within ground 1 must succeed.
Old country information
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 443 at [33] and [34] the Full Court (Kenny, Griffiths and Mortimer JJ) said:
The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
On the question of using the most recent country information, the Full Court said this (at [73]-[74]):
Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
(Emphasis added.)
With those statements in mind, it is clear from paragraphs [27]-[31] of the Tribunal’s reasons, set out at [17] above, that the Tribunal did not, as it was bound to do, take into account the then most recent country information with respect to the critical question of whether there was a real risk that the appellant would suffer significant harm were he to return to Sri Lanka, and instead considered older DFAT country information, which was materially different. Specifically, the 2012 DFAT Report asserted that there had been no allegations of mistreatment of returnees since 2009. The 2015 DFAT Report, on the other hand, said that there been “a small number of allegations of torture or mistreatment of returnees” and that the risk of torture or mistreatment for the great majority of returnees is low.
As counsel for the appellant submitted, by relying only on the 2012 DFAT Report, and in particular on the statements that there have been no reports of mistreatment of returnees and that they have not suffered any harm, the Tribunal precluded itself from assessing whether there was a “real risk” that the appellant would suffer significant harm were he to return to Sri Lanka. Admittedly, that would involve, as counsel recognised, an assessment by the Tribunal of how the “low” risk for “the great majority of returnees” marries with the language of ss 36(2)(a) and 36(2)(aa); however, its reliance only on the 2012 DFAT Report foreclosed the making of that assessment.
During the course of oral argument, I asked the Minister’s solicitors to provide me with a copy of the 2012 DFAT Report and 2015 DFAT Report. I have now read them. In light of the fact that the subject matter of the information set out in [27] of the Tribunal’s reasons from the 2012 DFAT Report covers the same field as the 2015 DFAT Report (namely, whether there is mistreatment of returnees), it is, with respect, puzzling to understand why any of those references to the 2012 DFAT Report are to be found in the Tribunal’s reasons, in light of the well-established principle that attention to current information is “a core aspect of lawful formation of a state of satisfaction” under s 36(2) of the Migration Act. It seems to me that, relevantly for present purposes, the 2012 DFAT Report could, and should, have been put entirely aside.
Edmund Rice Report not considered
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 443, [52]-[54] the Full Court said:
In the present case, the issue is squarely whether the Tribunal’s reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not … a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned … The issue here was, as we have explained above, an essential integer of the visa applicant’s claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
It is uncontroversial to say that, before a court on judicial review of these matters, an applicant assumes the burden of persuading the court to draw the inference of a failure to deal with a claim or consider a matter the tribunal was obliged to consider, or make the finding of jurisdictional error, for which she or he contends …
We also accept that a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal … This distinction is not, however, relevant to our analysis of the Tribunal’s failure in this case to address a claim made by the visa applicant, and therefore to perform its statutory task.
In this case, the Tribunal failed altogether to consider, or even to mention, evidence before the Tribunal from the appellant sourced from the Edmund Rice Centre about the situation of returnees that contradicted the 2012 DFAT Report. Like Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, this is not a case where the Tribunal is to be understood as having considered the evidence or a submission to be immaterial. On the contrary, the material contained in the Edmund Rice Report, which was part of a written submission provided to the Tribunal by the appellant’s solicitors, was an essential integer of the appellant’s claim. It was evidence which was led to advance his claim that he feared persecution, or that there a real risk he would suffer significant harm, and to contradict information contained in the 2012 DFAT Report. The Tribunal was, therefore, bound to consider it in the performance of its statutory task. It did not do so. That failure constitutes obvious jurisdictional error.
This is, of course, not remotely to suggest that the Tribunal was bound to accept the effect of the Edmund Rice Report or to prefer it to any DFAT report. But it was, for reasons I have explained, bound to consider it, and the matter must be remitted so that it may do so.
Ground 3
There is no merit in this ground (the point not dealt with by the primary judge). It is quite clear, in my view, that the Tribunal was at [17]-[19] of its reasons addressing the appellant’s oral evidence that the army had come to his house after he had left Sri Lanka looking for him “because I didn’t report to sign”. The Tribunal did not accept that evidence at [19], when it observed “[t]he Tribunal does not accept that the applicant was still reporting to the Army in 2012”. Once that is understood, the references to the CID are irrelevant.
Conclusion
The appeal will therefore be allowed, with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 27 September 2018
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