ALW15 v Minister for Immigration

[2016] FCCA 3148

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3148

Catchwords:
MIGRATION – Protection (class XA) visa – whether tribunal denied the applicant procedural fairness by failing to make an obvious enquiry about a critical fact – whether findings were illogical, made without evidence and therefore unreasonable – whether tribunal misapplied test for “serious harm” – whether tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth)

Cases:
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429
SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1

Applicant: ALW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 781 of 2015

Judgment of: Judge Jarrett

Hearing date: 19 September 2016

Date of Last Submission: 19 September 2016

Delivered at: Brisbane

Delivered on: 8 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent enters a submitting appearance

ORDERS

1. The further amended application filed on 8 September, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 781 of 2015

ALW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applied for a Protection (class XA) visa on 16 November, 2012.  His application was refused by a delegate of the first respondent on 8 August, 2013.  He applied for a review of that decision by a refugee review tribunal which, on 31 March, 2015 decided to affirm the delegate’s decision.

2. By this application, the applicant seeks judicial review of the tribunal’s decision.  The application is opposed by the first respondent.  The second respondent enters a submitting appearance.

3. Both parties filed written submissions to which I have had regard and from which the non-contentious facts set out hereunder have largely been drawn.

Background

1. The applicant is a Sri Lankan national of Tamil ethnicity and Hindu religion.  He arrived in Australia on 2 September, 2012.

2. In the past, and before he came to Australia, the applicant claimed that he worked as a building construction supervisor.  He provided to the tribunal a letter from the managing director of the construction company for whom he worked, as evidence of his employment.  He claimed that the company for which he worked tendered cheaply for contracts, causing anger among competitors.

3. At or about the end of 2010, the applicant’s employer obtained a contract for work on a hospital.  An officer of the hospital wrote a letter granting the contract to his employer.

4. Soon after, the applicant claims that he saw two police and three men in civilian clothes go to the hospital and into the administration office.  The manager of the building later told the applicant the men had torn up the letter awarding the contract to the applicant’s employer.  The applicant claimed that his boss wanted the hospital official to support a complaint to the police, but the official was not willing, saying that it was a dangerous time, and he did not know who the men were.  The applicant claims that his boss had no choice but to “let the matter go”.

5. After that episode, the applicant claims that he received about five threatening telephone calls on his mobile telephone.  He claimed that even though he changed his SIM card, the calls kept coming.  He did not know how the callers got his number.  The calls threatened that if he wanted to live, he had to leave his construction job.  He believed the calls were from a paramilitary group such as the Karuna Group, doing “dirty work” for competitor contractors.

6. The applicant left his job and from early 2011 to about May, 2012 he went to work in Qatar, but he claims that because of illness in his family, his responsibility to support various family members and because he had difficulty in Qatar, he returned to Sri Lanka.

7. When he returned to Sri Lanka, his family told him that the people who had caused him trouble would still remember him and he should leave Sri Lanka.  He again departed Sri Lanka.  After his departure from Sri Lanka, his family told him that people were coming to his home and asking about him.

8. The applicant’s claims before the tribunal were that:

   a)he feared being abducted or shot or tortured by government or paramilitary groups involved with the government;

   b)he feared that in Sinhalese areas of Sri Lanka he would be questioned and suspected of supporting the Liberation Tigers of Tamil Eelam because of his Tamil race;

   c)he feared that in Tamil areas there is no peace because of paramilitary groups and he would be harmed there;

   d)he feared that he would be imputed with a political opinion of support for the LTTE and of opposition to the government and to the paramilitary groups because of being a Tamil and because of having applied for protection in Australia; and

   e)he feared harm as a person who left Sri Lanka illegally to go to Australia.

9. He claimed that he cannot avail himself of the protection of the state if he were to return to Sri Lanka.

10. Before the tribunal the applicant, by his representatives, presented a large volume of material in support of the application for the visa.  This was augmented by material from other sources to which the tribunal referred.  The vast volume of material before the tribunal included, for example, reports of abuses suffered by Tamils in Sri Lanka, including torture and other atrocities suffered in the years since the end of the civil war in 2009.  Reports before the tribunal were from diverse sources, including Amnesty International, UNHCR, the United States State Department, the Australian Department of Foreign Affairs and Trade, and many others.

The tribunal’s decision

1. The tribunal delivered extensive and comprehensive written reasons for its decision to affirm the decision of the first respondent’s delegate.  In doing so, the tribunal made a number of findings.  The tribunal found that:

   a)despite doubts about the matter, the applicant had worked for a construction company as he had claimed and that this may have included some role in supervision at a working site;

   b)the company, TK Construction, was given a contract in late 2010, that it commenced work on the contract and that there was an incident in which five men came to the hospital and tore up the letter awarding the contract to the applicant’s employer;

   c)the applicant received around five threatening phone calls, that he changed his SIM and that he then received four or five further threatening calls;

   d)the applicant was not physically harmed or confronted by anyone in the time between the telephone threats that he had received and when he left to work in Qatar;

   e)by 2015 the managing director of the company which employed the applicant, was no longer undertaking construction work, but another type, or other types, of business;

   f)however, on the basis of the printing on the letterhead of the letter dated 20 December, 2012 submitted to the tribunal as evidence of the applicant’s claims, the managing director was continuing to run a construction company as late as February, 2012;

   g)the intervention of the people in the hospital contract as claimed by the applicant was “essentially a criminal matter” and was not Convention related behaviour, or actions taken against the applicant for a convention reason;

   h)the applicant was not a person to whom Australia owed protection obligations;

   i)the applicant was not a person to whom Australia owed complimentary protection obligations because although prison conditions in Sri Lanka are poor, even if the applicant spent some time in prison in Sri Lanka upon his return, the period would be brief and his detention would not amount to serious harm such that the applicant was a person in respect of whom Australia owed protection obligations under the Refugees convention;

   j)that any harm the applicant might suffer in prison was not likely to be intentional such as to amount to significant harm within the meaning of that term as used in the Migration Act 1958 (Cth) and not give rise to a right to complimentary protection under the Act.

2. The tribunal also found:

   a)the applicant’s father had been killed by the LTTE in 1993.  Although the applicant had claimed at one stage that he also had been involved, the tribunal did not accept that;

   b)the applicant’s brother had been abducted or had disappeared in 2000;

   c)the security situation in Sri Lanka had improved significantly since 2000 and in particular since the Civil War had ended, and the LTTE no longer existed as an organised force;

   d)the applicant’s house had been destroyed in shelling in 2007 and he had suffered and subsequently lived in a camp for internally displaced persons;

   e)the applicant had not had issues with Muslims as he was going to and from work;

   f)that the company for which he had worked had been granted a tender to work on a hospital and the applicant had witnessed several men attending a worksite, confronting a site manager and tearing up a letter confirming the grant of the work;

   g)that the applicant had received around 10 threatening phone calls including after he had changed his SIM card;

   h)despite receiving the threatening phone calls, the applicant continued to work in the construction company for at least a further month;

   i)that the actions complained of by the applicant had not gone beyond threats and there had been no physical confrontation or harm;

   j)the applicant had moved to Qatar for a period but then returned to Sri Lanka in May, 2012 during which time he had stayed mostly at his former home and had not been subject to further threats or incidents;

   k)the applicant’s former employer had continued to pursue business opportunities of one kind or another in Sri Lanka;

   l)although the identity of the persons threatening the applicant and the company for which he worked were unclear, the incidents complained of by the applicant were simply people seeking to prevent the applicant’s employer from pursuing the particular construction contract concerning the hospital;

   m)the applicant had not been involved in any physical altercations or received any further threats once his construction company employer did not pursue the hospital build construction contract; and

   n)that any action taken against the applicant and about which he complained was not motivated by the applicant’s race or imputed political opinion.

3. The tribunal did not accept that persons had visited the homes of the applicant’s parents and sister looking for the applicant as the applicant had claimed.  It did not accept that the applicant was of any particular interest to paramilitary groups in Sri Lanka and did not accept that he was at risk of harm because of his time in the construction industry. 

The grounds of review

1. There are five grounds of review in the applicant’s further amended application for review filed on 8 September, 2016.  I will deal with each separately.

Ground One – failure to discharge obligations under the Act    

1. This ground of review is in the following terms:

   Ground 1: The Second Respondent (‘the tribunal’) denied the applicant procedural fairness and/or breached its obligations under section 424 or s.425 of the Migration Act in failing to contact, and/or in failing to properly consider, the request of the applicant to contact, his previous employer.

   Particulars

   (a) The applicant claimed to have worked for T.K Construction company and that within the course of his employment he was subject to threats causing him to flee to Qatar.

   (b) The applicant claimed that the people threatening him were associated with paramilitary groups such as Karuna or Pillayan, and were partly motivated to take over the construction company’s work contract and also targeted him because of his Tamil ethnicity.

   (c) The tribunal was prepared to accept that the applicant worked for T.K Construction and that he had received the threats, as claimed.

   (d) The tribunal however considered it to be of “some significance” that the owner and Managing Director of the TK Construction company continued to conduct business activities in Sri Lanka well after the applicant had departed for Qatar. The tribunal noted that the owner had provided a letter to the applicant on letterhead of T.K Construction dated 20 December 2012.

   (e) The applicant suggested that the previous owner was now running a mobile distribution business and that he may have used his T.K Construction letterhead even though he was not operating the business at the time.  The applicant invited the tribunal to contact the owner and check whether he was still doing construction work.

   (f) The tribunal considered it unnecessary to contact the owner as it was willing to accept that he was no longer doing construction work.

   (g) However, the tribunal made a critical finding that at the time of providing the letter to the applicant, in December 2012, the owner was engaged in construction work at the time. This was a significant finding that undermined the applicant’s Convention based claims and in the circumstances, the tribunal denied the applicant procedural fairness in not contacting the owner.

2. The gravamen of this ground is that the tribunal was under an obligation to make an obvious enquiry about a critical fact the existence of which was easily ascertained and that it did not do so.  There is no contention from the first respondent that the tribunal was not bound to make an obvious enquiry about a critical fact, the existence of which was easily ascertained.  However, the first respondent argues that in the circumstances identified by the applicant, the obligation to make such an enquiry – about the business engaged in by the applicant’s former employer as at 20 December, 2012 was not engaged.

3. As I have set out above, the tribunal accepted that the applicant worked for the construction company for which he had claimed to have worked.  It accepted that he had received threats as he had claimed.  But the tribunal considered that it was significant that the owner and managing director of the construction company for which the applicant had worked continued to conduct a construction business in Sri Lanka well after the applicant had departed for Qatar.  The tribunal recorded that the owner had provided a letter to the applicant on the employer’s letterhead – TK Construction – dated 20 December, 2012.  Before the tribunal, the applicant suggested that his former employer was now running a “mobile distribution business” and not a construction business.  He suggested that his former employer may have used the TK Construction letterhead even though he was not operating a construction business at the time. 

4. The tribunal recorded in its reasons for decision that the applicant invited the tribunal to contact the owner of the business and check whether he was still doing construction work.  However according to the tribunal’s reasons, it was unnecessary to contact the owner as it was willing to accept that he was no longer doing construction work in 2015 although it did not accept that the applicant’s former employer was not engaged in construction work as at the date of the letter in 2012.

5. The applicant submits that the tribunal’s finding that at the time of providing the letter to the applicant in December, 2012 his former employer was engaged in construction work, was a critical finding.  The applicant submits that the tribunal’s finding about that matter undermined the applicant’s Convention based claims because it indicated that, contrary to the applicant’s claims, the threat from the paramilitary groups had not prevented the applicant’s employer from engaging in construction work as late as 2012.  It ought to therefore be characterised as a critical finding. 

6. The applicant suggests that the tribunal ought to have made an enquiry of the applicant’s former employer about that fact and in particular ought to have enquired about:

   a)the applicant’s employer continuing construction work as late as December, 2012; and

   b)if not, why the employer used TK Construction company letterhead for the letter written in December, 2012.

7. The applicant suggests that in failing to undertake those enquiries, it failed to exercise its power and jurisdiction.  It failed to conduct a review of the decision of the first respondent’s delegate.  The applicant argues that he was, thereby, denied procedural fairness.

8. However, I am unpersuaded that the tribunal was obliged to undertake the enquiries suggested by the applicant or that the tribunal’s failure to do so was a denial of procedural fairness or a failure by the tribunal to conduct a review on the merits of the delegate’s decision.

9. There is no doubt that, as a matter of principle, a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained could, in some circumstances, amount to a constructive failure to exercise jurisdiction and thereby amount to a jurisdictional error sufficient to warrant interference with the decision under review: Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at [25].

10. However, it is insufficient to simply identify what is said to be an “obvious enquiry” about what is alleged to be a “critical fact, the existence of which is easily ascertained” unless it is also demonstrated that there is a sufficient link between that failure and the outcome of the decision under review so as to constitute a failure to review.  In SZIAI (above) the plurality said (my emphasis):

    25. … It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    26. The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAIwould have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

1. To succeed on this ground, it is necessary for the applicant to demonstrate a factual basis for the conclusion that the failure to enquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable to support a finding that the tribunal’s decision was infected by jurisdictional error.

2. The difficulty that existed in SZIAI exists in the presence case.  As the first respondent’s submissions accurately observe, the tribunal was entitled to accept at face value the document that had been supplied to it and relied upon by the applicant.  Indeed, it did so.  The tribunal took the document into account as part of the applicant’s case.  The letter, cast as it was on the letterhead of an organisation with the word “construction” in its name, would lead a reasonable reader to the conclusion that the organisation’s business was construction.  That is the approach invited by the letter and the approach adopted by the tribunal. 

3. There is no evidence before me which would suggest that any further enquiry by the tribunal would have yielded a different or useful result.  The applicant has placed no evidence before the Court about the information that might have been elicited if the tribunal had undertaken the enquiry which he contends ought to have been made in respect of this critical question.  The enquiry suggested was a telephone enquiry with the author of the letter.  As the first respondent points out, even if such a telephone call had been made and assuming the person at the other end of the telephone was the author of the letter, he would have either confirmed the details in the letter and the inference that the tribunal drew from it that he was still conducting a construction business which would have told against the applicant’s claims; or he might have said that he was not operating a construction business at the relevant time which would raise questions about why it was that the particular letterhead used was in fact used in these circumstances.

4. For reasons analogous to those expressed in SZIAI at [26], in my view, even if the tribunal had made the enquiries suggested by the applicant in this case, there is no evidence that those enquiries would have yielded a useful result.

5. Further, I accept the first respondent’s submission that whilst the tribunal accepted that the threats alleged by the applicant had been received by him, the tribunal was not satisfied that they were made for a convention reason but rather, the threats were made as a “criminal matter related to a particular building contract”.  Given that finding, the threats made to the applicant could not found a fear of persecution for the purposes of the Convention even if what the applicant said about his former employer’s business was correct.  Accordingly, the finding made by the tribunal about the applicant’s former employer’s business in December, 2012 was not a critical fact for the purposes of the principle in SZIAI referred to above.

6. In my view, this ground does not demonstrate jurisdictional error on the part of the tribunal.

Ground Two

1. This ground of review is in the following terms:

   Ground 2: The tribunal made critical findings that were unreasonable and/or made without evidence.

   Particulars

   (a)     The finding that the applicant would not be at risk of serious harm upon return to Sri Lanka because his previous boss was ‘able to remain in Sri Lanka and pursue business activities there’ was speculative and had no proper evidentiary foundation.

   (b)     The finding that the applicant’s family would not have delayed telling him about people coming and asking about him because they were concerned the he would be worried or anxious was a speculative and unreasonable finding.

2. Although put in the ground of review as an argument based upon unreasonableness, the applicant says that the tribunal “fell into jurisdictional error in that it was illogical and made findings of material questions of fact based upon assumption or error but without probative evidence”.

3. The applicant argues that the tribunal’s finding that the applicant would not be at risk of serious harm upon return to Sri Lanka because his previous employer was able to remain in Sri Lanka and pursue business activities there was speculative and had no proper evidentiary foundation.  He argues that there was no evidence that the applicant’s former employer “had been able to pursue business of a kind which was of interest to the paramilitary groups, or how he had not suffered harm”. 

4. Further, the applicant cavils with the tribunal’s finding that the applicant’s family would not have delayed telling him about people coming and asking about him because they were concerned that he would be worried or anxious.  He suggests that the tribunal’s finding  about that was “speculative and unreasonable”.

5. Given that the applicant is cavilling with the findings made by the tribunal the relevant test is one of illogicality or irrationality as opposed to unreasonableness as explained in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1, at [83]. It must be shown that the process of reasoning engaged in by the tribunal, or its conclusion, was ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’.

6. As to the first finding about which the applicant complains, the precise complaint is not entirely clear.  The particulars given by the applicant are ambiguous: he might be complaining about the finding that the applicant would not be at risk of serious harm, or he might be complaining about the finding that the applicant’s previous employer was able to remain in Sri Lanka and pursue business activities there.  Whatever the case might be, the tribunal’s determinations were neither irrational nor illogical in the relevant sense.  The actual findings made about this matter are contained in the following paragraphs of the tribunal’s decision:

   84.    The Tribunal has had regard to information and submissions in relation to the activities of paramilitary groups. As noted above, the DFAT report itself refers to reports that paramilitary groups continue to be active, including in criminal activity. The Tribunal accepts that such groups continue to operate and have some involvement in criminal activity. However, in all the circumstances and having regard to all the evidence, the Tribunal does not accept that the applicant would be of any particular interest to the Pillayan or Karuna groups or anyone else as a result of the matter to do with the hospital contract in late 2010 or his involvement in construction work. Looking to the reasonably foreseeable future, it finds to be remote the chance that he would face serious harm at the hands of such groups as a result of his past involvement in this matter or in construction activities more generally. As discussed below, the Tribunal considers that independent information indicates that there has been an improvement in the security situation in Sri Lanka since the end of the civil war. The Tribunal considers that this is relevant also to the question of whether the applicant would face a real chance of persecution at the hands of paramilitaries, the government or anyone else in Sri Lanka.

   …

   86.    As the Tribunal discussed with the applicant at the hearing, the evidence indicates that [employer] continued operating the construction business after the applicant’s departure. As also discussed with the applicant at the hearing, the evidence indicates that the problems prior to his departure in early 2011 arose out of a particular construction contract at a hospital which was ultimately not fulfilled. The Tribunal finds that [employer] was able to continue operating the construction business after this notwithstanding the problems that had occurred in relation to that particular contract. In these circumstances, the Tribunal does not accept that the applicant would be of adverse interest to paramilitary groups or anyone else because they would be concerned about the prospect of the applicant being involved in construction work on his return. Nor does it accept that he would be of interest to them because he would be seen as being opposed to such groups as a result of the matter concerning the hospital contract or his involvement in construction work. It has considered the applicant’s evidence about this but does not accept that he would be of any particular interest to paramilitary groups on return or that there is a real chance that they would do him serious harm because of his past involvement in the particular contract or in construction activities more generally.

7. Later, in relation to the applicant’s claims to complementary protection, the tribunal said:

   137.  With regard to the matters relating to TK Construction, the Tribunal has accepted that the company, TK Construction, was given a contract in late 2010, that it commenced work on the contract and that there was an incident in which five men came to the hospital and tore up the letter. It accepts that the applicant received around five threatening phone calls, that he changed his SIM and that he then received four or five further threatening calls. However, the Tribunal has not accepted the applicant’s claims about people subsequently coming to the home and asking for him. As discussed above, the evidence indicates that T.K. Construction did not in fact fulfil the hospital contract. The issue relating to the contract at the hospital arose over four years in the past. The evidence indicates that no one had directly confronted or physically harmed the applicant in the period prior to his departure for Qatar. The applicant’s evidence indicated that he had continued construction work for at least a month after the incident in which the letter was torn up at the hospital. In these circumstances, the Tribunal considers that there would have been an opportunity for people to confront him directly or physically harm him if they wished to do so. The Tribunal has found that the owner and managing director of T.K. Construction was able to remain in Sri Lanka and continue pursuing business activities. While the Tribunal is willing to accept that [employer] is no longer involved in construction, the Tribunal has not accepted the applicant’s claims that [employer] was no longer involved in construction by December 2012.

8. It is clear from the tribunal’s reasons that the tribunal found that the applicant’s former employer was able to remain in Sri Lanka after the making of the relevant threats and was able to pursue business activities there.  The tribunal had before it some evidence upon which it could act to determine that the applicant’s former employer was continuing to conduct a construction business as late as December, 2012.  Moreover, there was no dispute that at the time of the tribunal’s hearing the applicant’s former employer was conducting a mobile telephone distribution business in Sri Lanka.  The finding that the applicant’s former employer was able to remain in Sri Lanka and pursue business there was not without evidence.  Nor was it illogical.

9. So too the finding that the applicant would not face a real chance of serious harm if he was to return to Sri Lanka.  As the first respondent points out, not only did the tribunal take the finding about his former employer’s ability to carry on a construction business into account when it made that finding, the tribunal also took into account other matters.  In particular, it considered the evidence that the applicant had continued to work at the site for at least a month, that he had returned to Sri Lanka for a period and had lived without incident and that even though his former employer had left the construction business he was continuing to pursue other kinds of business in Sri Lanka. 

10. As to the second finding particularised in this ground of review, it is apparent that the tribunal made no such finding.  Rather, the tribunal did not accept the applicant’s claims about those matters.  At [81] the tribunal said:

    81.    The Tribunal does not accept the applicant’s claims about people coming to the home and asking for him. It notes that the applicant claimed at the hearing that this occurred when he was in Qatar. However, he claimed that he did not mention this in his written statement to the Department because his family told him about this afterwards. He indicated that his family told him after he came to Australia. The Tribunal does not find at all convincing the applicant’s claim that his family might have delayed telling him about people coming and asking about him because they were concerned that he would be sorry or more anxious. If people had been asking about the applicant, this would have been something of obvious and immediate interest to the applicant. The Tribunal does not accept that they would have delayed telling him about this because they were concerned that he might be sorry or anxious. The Tribunal finds the applicant’s evidence about this to be lacking in credibility. It finds that this undermines the general credibility of his claims and evidence about people coming to his home and asking for him.

11. What the tribunal found was that the applicant’s claims did not have credibility.  There was nothing illogical or irrational about the tribunal’s refusal to accept the applicant’s claims about his family not informing him of people coming to the home and asking for him.  The tribunal explained why it did not accept those matters.

12. In my view, this ground reveals no jurisdictional error.

Ground Three

1. Ground 3 is expressed as follows:

   Ground 3: The tribunal misapplied the law in its findings as to what was capable of amounting to ‘serious harm.’

   Particulars

   (a)     Although the tribunal accepted that the applicant had been threatened in the past, causing him to leave his country, it did not accept that the applicant was seriously harmed in the past.

   (b)     It can be inferred from the reasons of the tribunal that this finding was made because the applicant had not previously been ‘physically confronted’ by paramilitaries or others in the past.

   (c) The tribunal wrongly confined its assessment of what amounts to ‘serious harm’ as only involving physical harm.

2. The applicant argues that it can be inferred from the reasons of the tribunal that it did not accept that the applicant was seriously harmed in the past because he had not previously been physically confronted by paramilitaries or others.  The applicant argues that the tribunal thereby wrongly confined its assessment of what might amount to serious harm as only involving physical harm. 

3. However, the tribunal did not take such an approach.  The tribunal considered carefully in my view, the fact that the applicant was claiming that he had received serious threats from a paramilitary group.  A proper reading of the tribunal’s reasons demonstrates that it attended to its statutory task – namely the assessment of risk of harm to the applicant in the future. 

4. The first respondent points out, correctly in my view, that the tribunal did not make a specific finding about whether or not the applicant had suffered “serious harm” in the past although it dealt comprehensively with the claims made by the applicant.  It did, however, make a finding about the risk of harm into the future by considering all of the matters that had been put to it, including claims of past incidents.  As the first respondent submits, the tribunal accepted that the applicant had been threatened, but it was also relevant that the incidents had not gone beyond threats and that the threats had been confined to a limited number and period. 

5. The tribunal properly identified the particular circumstances of the applicant’s case raised by him for its consideration.  It is not necessarily to the point for the tribunal to characterise the harms claimed to have been suffered by the applicant in the past as “serious” or some other form of harm.  What is critical is the tribunal’s finding as to the future risk of serious harm. That is what the tribunal assessed in this case.

6. In my view, the tribunal’s reasons reveal no jurisdictional error as contended for by the applicant in this ground.  

Ground Four

1. Ground 4 is as follows:

   Ground 4: The Tribunal fell into jurisdictional error in failing correctly to interpret or to apply the law

   Particulars

   (a) The Tribunal said it “does not accept that the applicant would be of interest to the Pillayan or Karuna groups or anyone else as a result of the matter to do with the hospital contract in late 2010 or his involvement in construction work”. (CB 361, [84]. See also CB 366, [99]; CB 380, [139])

   (b) The Tribunal said it “does not accept that the applicant would be of adverse interest to paramilitary groups or anyone else because they would be concerned about the prospect of the applicant being involved in construction work on his return.  Nor does it accept he would be of interest to them because he would be seen as being opposed to such groups…. [It] does not accept he would be of any particular interest to paramilitary groups on return…” (CB 362, [86. See also CB 380, [139])

   (c) The Tribunal said it “does not accept that …. he would be perceived as a supporter of, or associated with, the LTTE or as being opposed to the Sri Lankan government.” (CB 365, [94])

   (d) The Tribunal said it “does not accept that this [coming from an area previously controlled by the LTTE] would cause the applicant to be of interest to the authorities or anyone else on return or to come to particular attention as a returnee to Sri Lanka… it does not accept that this would cause him to be imputed with a pro-LTTE profile…” (CB 366, [98])

   (e) The Tribunal said it “does not accept… that the applicant would be imputed with a pro-LTTE political opinion if he were to return.” (CB 366, [98])

   (f) The Tribunal said it “does not accept that the applicant would be suspected of being someone with LTTE links or an association with the LTTE.  It does not accept that he would be perceived as anti-government, pro-LTTE or separatist or a threat to the integrity of the state, … the Tribunal is not satisfied that he would be persecuted for reason of membership of particular social groups…” (CB 374, [121])

   (g) In each instance where the Tribunal refers in its reasons to not being satisfied or not accepting that the applicant “would” have a certain profile or would be persecuted or suffer harm, the Tribunal demonstrates that it did not correctly apply the law which required it to consider not whether such things “would” happen, but whether there was a real chance such as to amount to a well-founded fear of persecution, or a real risk of significant harm.    

2. The applicant correctly points out that the tribunal was required to consider if the applicant had a well-founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Sri Lanka.  It was required to consider if there was a “real chance” or “a real possibility” of the applicant suffering persecution or harm upon his return.  The applicant complains however, that the tribunal frequently made findings on the basis that it was not satisfied that certain things “would happen”.  The applicant identifies specific examples.  I have set out each of the relevant paragraphs below and emphasised the words relied upon by the applicant:

   84.    The Tribunal has had regard to information and submissions in relation to the activities of paramilitary groups. As noted above, the DFAT report itself refers to reports that paramilitary groups continue to be active, including in criminal activity. The Tribunal accepts that such groups continue to operate and have some involvement in criminal activity. However, in all the circumstances and having regard to all the evidence, the Tribunal does not accept that the applicant would be of any particular interest to the Pillayan or Karuna groups or anyone else as a result of the matter to do with the hospital contract in late 2010 or his involvement in construction work. Looking to the reasonably foreseeable future, it finds to be remote the chance that he would face serious harm at the hands of such groups as a result of his past involvement in this matter or in construction activities more generally. As discussed below, the Tribunal considers that independent information indicates that there has been an improvement in the security situation in Sri Lanka since the end of the civil war. The Tribunal considers that this is relevant also to the question of whether the applicant would face a real chance of persecution at the hands of paramilitaries, the government or anyone else in Sri Lanka.

   …

   86.    As the Tribunal discussed with the applicant at the hearing, the evidence indicates that Mr Kalendiran continued operating the construction business after the applicant’s departure. As also discussed with the applicant at the hearing, the evidence indicates that the problems prior to his departure in early 2011 arose out of a particular construction contract at a hospital which was ultimately not fulfilled. The Tribunal finds that Mr Kalendiran was able to continue operating the construction business after this notwithstanding the problems that had occurred in relation to that particular contract. In these circumstances, the Tribunal does not accept that the applicant would be of adverse interest to paramilitary groups or anyone else because they would be concerned about the prospect of the applicant being involved in construction work on his return. Nor does it accept that he would be of interest to them because he would be seen as being opposed to such groups as a result of the matter concerning the hospital contract or his involvement in construction work.  It has considered the applicant’s evidence about this but does not accept that he would be of any particular interest to paramilitary groups on return or that there is a real chance that they would do him serious harm because of his past involvement in the particular contract or in construction activities more generally.

   …

   94.    The Tribunal notes that submissions have highlighted observations in UNHCR Guidelines that generally members of the minority Tamil community are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal has had regard to this. However, the observations made by UNHCR were in the context of referring to particular risk profiles. These include persons suspected of certain links with the LTTE. The Tribunal accepts that these are not intended to be exhaustive. However, as noted above, the UNHCR had indicated in its 2010 Guidelines that there was no longer a need for group-based protection mechanisms or for a presumption of eligibility for Tamils. Having carefully considered all the country information, the Tribunal does not accept that Sri Lankans who are of Tamil ethnicity face a real chance of serious harm simply because of their ethnicity.  The Tribunal does not accept that there is any real chance that, because the applicant is a Tamil or a Tamil male from the Eastern Province, he will be imputed to be a supporter of, or involved with, the LTTE, or to be opposed to the Sri Lankan government. As discussed further below, the Tribunal does not accept that because he departed illegally or is a failed asylum seeker he would be perceived as a supporter of, or associated with, the LTTE or as being opposed to the Sri Lankan government.

   …

   98.    In making its findings, the Tribunal has had regard to the applicant’s evidence that the area he came from previously had an LTTE presence. In oral submissions at hearing, the representative placed considerable emphasis on the applicant being from an area that had been under LTTE control. She stated that he was a male from an LTTE controlled area. As noted above, the UNHCR observed in its 2012 Guidelines that that 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”. Even if the area the applicant originates from was previously subject to LTTE control, the Tribunal does not accept that this would cause the applicant to be of interest to the authorities or anyone else on return or to come to particular attention as a returnee to Sri Lanka. It does not accept that this would cause him to be imputed with a pro-LTTE profile. Even having regard to the fact that the applicant is a male from an LTTE-controlled area, the Tribunal is not satisfied that this gives rise to a real chance of persecution for reason of his ethnicity or any other Convention reason.

   …

   99.    The Tribunal has also considered the claims about the risks posed by paramilitary groups. For reasons set out above, the Tribunal does not accept that the applicant would be of any particular interest to the Pillayan or Karuna groups or anyone else as a result of the matter to do with the hospital contract in late 2010. It finds this to be the case notwithstanding the threats that he received prior to his departure from Sri Lanka in February 2011. Looking to the reasonably foreseeable future, it has found to be remote the chance that he would face serious harm at the hands of such groups as a result of his past involvement in this matter or  in construction activities more generally. It does not accept that he would be regarded as having a political opinion of opposition to the Karuna or Pillayan groups or any such groups. The Tribunal accepts that paramilitary groups continue to operate, including engaging in some criminal activity. Nevertheless, it finds that the security situation has improved since the end of the civil war in 2009. Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant would be persecuted in Sri Lanka by the Karuna or Pillayan groups or any other paramilitary group. 

   …

   120.  In making its findings, the Tribunal has had regard to information about torture and in particular about the torture of Tamil prisoners. It has had regard to the written and oral submissions made by the applicant’s representative, including submissions about the use of torture by the authorities, prison conditions and human rights abuses. The submissions to the Tribunal included reference, for instance, to information from Human Rights Watch concerning the risk of torture to Tamils with alleged LTTE links. The Tribunal does not accept on the available evidence that the applicant would be imputed with a pro-LTTE political opinion if he were to return. It accepts that he would face a short period on remand while awaiting a hearing in relation to offences under Sri Lankan law. However, it is not satisfied that he would face any more than a remote chance of being tortured (or otherwise seriously harmed) during his short stay in prison.

   …

   121.  The Tribunal accepts on the evidence before it that a suspicion of LTTE links may give rise to harsh treatment or torture either on return or at some later time. However, the Tribunal does not accept that the applicant would be suspected of being someone with LTTE links or an association with the LTTE. It does not accept that he would be in any way regarded as someone with an association with the LTTE. It does not accept that he would be perceived as anti-government, pro-LTTE or separatist or a threat to the integrity of the state. Having carefully weighed all the country information and having regard to the applicant’s particular circumstances, the Tribunal is not satisfied that, if the applicant were to return to Sri Lanka, he would be persecuted for reason of membership of particular social groups such as Tamil failed asylum seekers who left the country illegally, for reason of his ethnicity or for reason of an imputed political opinion. Having careful regard to all the information, the Tribunal is not satisfied that the applicant would face a real chance of persecution for reason of being a Tamil returnee or a Tamil failed asylum seeker.    

   …

   139.  The Tribunal has been willing to accept that the applicant may have been questioned and threatened by the authorities in 2007. However, it does not accept on the evidence that this amounted to significant harm. For reasons set out above, it does not accept that the authorities in fact regarded the applicant as being involved in the LTTE in any way. It does not accept that the applicant would be of any interest to the authorities for this reason if he were to return. As set out above, the Tribunal has found that the security situation has improved since the end of the civil conflict. It does not accept that the fact of being a Tamil or a Tamil male or a Tamil from an area that was formerly controlled by the LTTE gives rise to substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

1. However, as the first respondent’s submissions correctly point out, in each case set out above by the applicant, it is clear from the surrounding words and the context of each paragraph that the tribunal was indeed applying the “real chance” test.  There is no basis for the applicant’s suggestion that the tribunal misapplied the applicable test.  As the first respondent argues, whilst the tribunal certainly expressed itself by reference to what “would” be the case in certain circumstances, the tribunal did so “on the way to a finding that there was a low risk of persecution or harm”.  The tribunal’s reasoning is entirely unremarkable.

2. This ground reveals no jurisdictional error.

Ground Five

1. Ground 5 is as follows:

   Ground 5 - The Tribunal fell into jurisdictional error by failing to consider relevant considerations, including claims. integers of claims or information before the Tribunal

   Particulars

   (a) The Tribunal concluded that the laws penalising illegal departure from Sri Lanka were of general application and not discriminatorily applied but it failed to consider the claims and evidence that the overwhelming majority of people returning to Sri Lanka after illegally departing from the country were Tamils (See e.g. CB266; CB 374, [119]);

   (b) The Tribunal failed to consider the risk of persecution or significant harm if the applicant were released soon after return to Sri Lanka, but was then monitored and harrassed (sic) or physically harmed by government or paramilitary forces, although the Tribunal had evidence of such harassment and harm and even torture of people after their release from initial detention. (Sec e.g. CB 258-270, especially at 263-264, 267)

   (c) The Tribunal failed to consider the defects in Australia’s ability or practice in monitoring the safety of people returned to Sri Lanka. (See e.g. CB 265)

2. As to the first particular of this ground, the applicant points to pages 266 and 374 of the Court Book.  Page 266 is part of a submission from the applicant’s representatives extracting information from various sources.  As the first respondent argues, it does not disclose a claim that the laws penalising illegal departure from Sri Lanka are applied in a discriminatory way because most people returning to Sri Lanka after illegally departing are Tamils.  Whilst that document certainly contains evidence of incidents of harsh treatment of some Sri Lankans who returned to Sri Lanka from Australia, the article which is the feature of p.266 of the Court Book refers to the treatment of 41 Sri Lankans returned from Australia – 37 Sinhalese and 4 Tamils.  All of them were taken to what was assumed in the article to be the “criminal investigation wing of the Sri Lankan police force”.  They were separated into groups along ethnic lines and the report details what happened to some members of the Tamil group.  It contains no report of what happened to the Sinhalese group who had also been detained.  That material tends to suggest that the returnee laws were not applied in a discriminatory way in that instance because returnees of both ethnic groups were detained upon return.  There is nothing to suggest that the treatment given to the Tamil group was any different to the treatment given to the Sinhalese group.  The extract is simply silent as to how the Sinhalese group were treated.

3. The tribunal made a finding that the relevant laws were laws of general application: tribunal’s reasons at [119]. That finding was open on the evidence before it. Indeed, the applicant seemed to concede as much: tribunal’s reasons at [15]. The applicant does not challenge that finding in this application. His case before the tribunal on this point was that the means utilised under the law were disproportionate to its aims. It was submitted that any prosecution of the applicant would be “political”: tribunal’s reasons at [27].

4. The claim now sought to be advanced by the applicant was not advanced to the tribunal.  Nonetheless, notwithstanding the absence of a clear or express articulation of a particular claim, the tribunal is required to deal with any claims which arise clearly or “squarely” on the material available to the tribunal. That is, the claim must be “apparent on the face of the material before the tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]. But in my view, such a claim as articulated in this particular to ground five of the grounds of review did not arise clearly on the material before the tribunal. It was not required, in those circumstances, to deal with it expressly.

5. In any event, I accept the first respondent’s submissions that the tribunal’s decision at [119] of its reasons deals sufficiently with the claims put by the applicant and extends to deal with the claims now put by him:

   119.  The Tribunal is satisfied that, when the Sri Lankan authorities question, detain, prosecute and penalise people for illegal departure, they are implementing a law of general application. It notes, for instance, the information from DFAT indicating that irregular maritime arrivals returned from Australia had been charged under Sri Lankan law (the Immigrants and Emigrants Act) for offences related to their illegal departure (DFAT 2012, SRI LANKA: CIS Request Sri Lanka: Questions arising from recent applications, Country Information Report No.12/67, 29 November, CISNET CX299951). The Tribunal is not satisfied on the evidence before it that the law is being applied in a discriminatory manner. As set out above, DFAT has advised that returnees are treated in the same way regardless of their race or religion, that allegations of mistreatment have not been substantiated and that it is not aware of allegations of mistreatment of returnees on remand. The Tribunal is not satisfied on the evidence before it that the applicant would, for one or more of the five Convention reasons, be treated differently to any other returnee who has breached Sri Lankan laws relating to illegal departure. The Tribunal does not accept that his race, religion, imputed political opinion or membership of a particular social group would constitute the essential and significant reason for being questioned at the airport, the possibility of being in remand for a short period, being charged / prosecuted, and being fined. The Tribunal does not accept that, as required by s.91R(1)(a) of the Act, one or more of the five Convention reasons would be the essential and significant reason for his being questioned, detained for a brief period, charged / prosecuted and fined. The Tribunal is satisfied that this is a law of general application and does not accept on the evidence before it that the penalties are disproportionate or applied in a discriminatory manner. Further, the Tribunal is not satisfied that any problems the applicant may face as a result of being charged, questioned, or held on remand in cramped and uncomfortable conditions are directed at the applicant for any Convention reason. It is not satisfied that they would constitute Convention-related persecution in relation to the applicant. The Tribunal is not satisfied that questioning, arrest, being charged, the poor conditions in remand, the application of a penalty for illegal departure or any subsequent questioning amount to systematic and discriminatory conduct as required by s.91R(1)(c).

   (my emphasis)

6. As to the second particular relied upon under this ground, the applicant points to CB 258-270, especially at CB 263-264 and 267. In these places, there is material that might provide some support for an allegation that persons who re-entered Sri Lanka having departed illegally were subjected to harm. However, the tribunal’s decision deals with this matter. In the tribunal’s reasons at [108]-[109], the tribunal referred to the treatment of returnees and the risks of torture or mistreatment. In the tribunal’s reasons at [110], the tribunal referred to information suggesting that individuals were usually placed at risk because of the potential for association with the LTTE. Further, in the tribunal’s reasons at [111], the tribunal referred to information from DFAT, which suggested that the risk of mistreatment for the “great majority of returnees is low”. The tribunal did not accept that the applicant was an individual who would be seen as having links to the LTTE: tribunal’s reasons at [113]-[114]. Further, the tribunal considered the submission about subsequent registration or interviews and was not satisfied that the applicant was a person likely to be the subject of this treatment: tribunal’s reasons at [115]. The tribunal concluded that the applicant would not face a real chance of persecution:

   121. The Tribunal accepts on the evidence before it that a suspicion of LTTE links may give rise to harsh treatment or torture either on return or at some later time. However, the Tribunal does not accept that the applicant would be suspected of being someone with LTTE links or an association with the LTTE. It does not accept that he would be in any way regarded as someone with an association with the LTTE. It does not accept that he would be perceived as anti-government, pro-LTTE or separatist or a threat to the integrity of the state. Having carefully weighed all the country information and having regard to the applicant’s particular circumstances, the Tribunal is not satisfied that, if the applicant were to return to Sri Lanka,  he would be persecuted for reason of membership of particular social groups such as Tamil failed asylum seekers who left the country illegally, for reason of his ethnicity or for reason  of an imputed political opinion. Having careful regard to all the information, the Tribunal is not satisfied that the applicant would face a real chance of persecution for reason of being a Tamil returnee or a Tamil failed asylum seeker.

7. I accept the first respondent’s submissions that read as a whole and not with an eye too finely attuned to error, it is clear that the tribunal had regard to these matters raised by the applicant and dealt with them.

8. The final particular of this ground of review rely upon the material at page 265 of the Court Book.  That page contains a general reference to a complaint that Australia had not sufficiently followed up on certain complaints from returnees.

9. According to the first respondent’s submissions, there are two answers to the applicant’s submission. The first is that the tribunal dealt with any claim this material apparently supported. The material could only have supported the claim that the applicant would be harmed if returned to Sri Lanka, because of his status as a returnee after an illegal departure.  The tribunal dealt with this claim, as I have set out above.

10. The tribunal rejected a claim that information provided by DFAT was not reliable at paragraph [113] of its reasons.  The tribunal was not convinced that the applicant would be at risk of harm as a returnee, given the general information about the treatment of Tamil returnees without a particular affiliation with the LTTE and given its finding that there was no reason the applicant would be perceived as having connections with the LTTE. The tribunal therefore found that there was no significant risk of the applicant being persecuted as a returnee, whether at the airport or afterwards.

11. According to the first respondent the second answer is that, in any event, an oblique reference to allegations of a failure of the Australian government to monitor people after returning home, which comes in the middle of a range of excerpts from various reports and articles, led to support a claim of persecution as a returnee, is not sufficiently specific and clear as to constitute a separate claim arising squarely on the materials, within the scope of NABE (No 2). It cannot be the case that any minor reference in a collection of third party information, to a general complaint without any further indication that it is intended to support a further ground, must be addressed in detail by the tribunal. I accept that submission.  The tribunal’s reasons discussed above were more than sufficient to deal with the applicant’s claims on this matter.

12. It is clear from the tribunal’s reasons that it set out in its reasons the material that it thought was relevant and bore upon the applicant’s claims.  The information upon which the tribunal might rely and the way in which the tribunal used that information was entirely a matter for it.  The tribunal does not need to mention in its reasons and deal specifically with each item of evidence or information upon which the applicant relies or places before the tribunal.

Conclusion

1. In my view, the application for review reveals no jurisdictional error on the part of the tribunal.  The application for review must be dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Jarrett deliver on 8 December, 2016.

Date: 8 December, 2016