Anq16 v Minister for Immigration

[2018] FCCA 3826

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3826

Catchwords:
MIGRATION – Protection visa – Administrative Appeals Tribunal affirmed delegate’s decision not to grant visa – alleged illogicality and unreasonableness – none shown – no error – application dismissed.

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

BCF15 v Minister for Immigration and Border Protection (2016) 314 FLR 291

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: ANQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 495 of 2016

Judgment of: His Honour Judge Wilson

Hearing date: 25 October 2018

Date of Last Submission: 21 November 2018

Delivered at: Melbourne

Delivered on: 20 December 2018

REPRESENTATION

Counsel for the Applicant: Mr A Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr B Petrie

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. The application filed on 11 March 2016 as amended on 17 September 2018 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 495 of 2016

ANQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed in this court on 11 March 2016 the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 16 February 2016 pursuant to which the tribunal affirmed a decision of the minister’s delegate made on 24 February 2014 to refuse the applicant the protection visa he sought.

2. In broad terms, in his amended application the applicant relied on three grounds for his contentions that the tribunal fell into jurisdictional error.  They were –

   a)the tribunal allegedly failed to consider relevant considerations;

   b)the tribunal allegedly erred in interpreting and applying the law; and

   c)the tribunal made findings without probative evidence or otherwise acted illogically, irrationally or unreasonably.

3. The minister denied that the tribunal erred in its treatment of the application for a merits review.  The minister contended that this proceeding should be dismissed.

Synopsis

1. For the reasons that now follow, in my view this application for judicial review failed.  I detected no error by the tribunal.  This proceeding must be dismissed and the applicant must pay the minister’s costs.

Short factual narration

1. The applicant is a male Sri Lankan citizen who arrived in Australia on 19 July 2012 as an unlawful maritime arrival.  He applied for a protection visa on 3 December 2012.  He claimed to fear harm from the Sri Lankan Army (“SLA”) and Sri Lankan authorities by reason of his Tamil ethnicity, his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“LTTE”) and by reason of his unlawful departure from Sri Lanka.

2. The delegate refused to grant the applicant the visa he sought.

3. The applicant applied to the tribunal for a merits review on 21 March 2014.  On 3 February 2016 the applicant provided the tribunal with a statutory declaration and submissions prepared by the applicant’s representative.  The applicant appeared before the tribunal on 5 February 2016, assisted by his representative.

4. The more important matters that arose from the tribunal’s decision were helpfully recorded by Mr Krohn of counsel in paragraphs 13 to 20 of his written submissions.  Relevantly paraphrased, those matters were as follows –

   a)between paragraphs 37 and 38 of its reasons the tribunal considered that there were inconsistencies between the applicant’s earlier claims at the entry interview and his later evidence, as a result of which the tribunal did not accept that the applicant had an encounter with Sri Lankan Army officers while working in Batticaloa, or the consequent threats and visits by army officers, which the applicant had claimed;

   b)at paragraph 73 of its reasons the tribunal also rejected as “vague and far-fetched” and “implausible” the claims made by the applicant relating to the threats by fishermen in 2014 because of the applicant’s work as a bulldozer driver on construction work in 2011 and 2012;

   c)at paragraph 77 of its reasons the tribunal said it did not accept that the applicant would have a real chance of serious harm or a real risk of significant harm as a Tamil, or for imputed support of the LTTE;

   d)between paragraphs 82 and 102 of its reasons the tribunal considered that the applicant had “no relevant profile as a person with actual or suspected links to the LTTE”, and so was not at risk on return as an illegal departure;

   e)at paragraph 81 of its reasons the tribunal concluded that the applicant did not have a profile such as to cause him to have a real chance of suffering persecution or to have a real risk of significant harm;

   f)at paragraphs 99 and 100 of its reasons the tribunal stated that prison conditions in Sri Lanka were poor, but did not consider that if the applicant spent a brief period in prison as a person who had illegally departed from Sri Lanka this would amount to serious harm such as to be persecution, such that the applicant was a person in respect of whom Australia owed protection obligations under the Refugees Convention;

   g)at paragraph 101 of its reasons the tribunal stated that no harm the applicant might suffer in prison was intentional such as torture, cruel or inhuman or degrading treatment or punishment such as to be “significant harm” within the meaning of the Act, nor did it give rise to a right to complementary protection under the Act; and

   h)between paragraphs 103 and 107 of its reasons the tribunal said that the applicant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse to grant the visa.

In this court

1. Being dissatisfied with the decision of the tribunal the applicant sought judicial review of the tribunal’s decision.  His amended grounds of review were threefold, each of which was subjoined with particulars.  It is useful to record his grounds at this juncture before examining them.  Those grounds were as follows –

   1.  The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations including claims, integers of claims, material questions of fact and information or material.

   Particulars

   (a)     The Tribunal failed properly to take account of the information before it relating to the phenomenon of torture and abuse of those in detention or prison or under the control or power of the authorities of Sri Lanka. (Court Book (“CB”) 208-221; CB 316, [84]-[87]; CB 318, [99]-[100])

   (b)     In assessing the weight to be given to inconsistencies between the Applicant's evidence at the Entry Interview and his later evidence, the Tribunal failed to consider:

   (i) the limited purpose of the Entry Interview;

   (ii)     the limited duration of the Entry Interview;

   (iii)    the fact that the Entry Interview was conducted through an interpreter;

   (iv)    the fact that the Entry Interview was conducted 3 years and 5 months before the Tribunal's hearing;

   2.  The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.

   Particulars

   (a)     Given the information before the Tribunal relating to the phenomenon of torture and abuse of those in detention or prison or under the control or power of the authorities of Sri Lanka, in finding that there was no real chance of the Applicant suffering serious harm and no real risk of him suffering significant harm, it is to be inferred that the Tribunal was in fact requiring to be satisfied of more than a real chance or a real risk of such harm. Court Book "CB" 208-221; CB 316, [84]-[87]; CB 318, [99]-[100]; CB 319, [103]-[104])

   3   The Tribunal fell into jurisdictional error in that it made findings without probative evidence or otherwise acted illogically, irrationally, unreasonably, or so unreasonably that no reasonable Tribunal would so have acted.

   Particulars

   (a)     Given the information before the Tribunal relating to the phenomenon of torture and abuse of those in detention or prison or under the control or power of the authorities of Sri Lanka, the Tribunal was unreasonable in finding that there was no real chance of the Applicant suffering serious harm and no real risk of him suffering significant harm. (Court Book (“CB”) 208-221; CB 316, (84)-(87]; CB 318, (99][100]; CB 319, [103]-[104])

   (b)     The Tribunal was unreasonable in assessing the weight to be given to inconsistencies between the Applicant's evidence at the Entry Interview and his later evidence, given:

   (i) the limited purpose of the Entry Interview;

   (ii)     the limited duration of the Entry Interview;

   (iii)    the fact that the Entry Interview was conducted through an interpreter;

   (iv)    the fact that the Entry Interview was conducted 3 years and 5 months before the Tribunal's hearing;

2. When this proceeding was heard by me I drew to the attention of counsel the pronouncements of the Full Court in AVQ15 v Minister for Immigration and Border Protection.[1]  I asked whether either wished to consider the application of that decision as neither counsel had referred to it in their written submissions.  Each counsel filed supplementary written submissions that addressed inconsistencies as found by the tribunal.  I have taken into account each party’s written submissions filed prior to the hearing on 25 October 2018, their viva voce submissions on 25 October 2018 and also their further written submissions filed on 12 and 21 November 2018.

   [1] [2018] FCAFC 133

Ground one

1. Under this ground, a dispute arose about whether the applicant actually made the claim asserted in particular 1(a).  The minister submitted that the applicant did not expressly claim that the phenomenon of torture and abuse constituted a part of the applicant’s claim.

2. It became necessary to consider whether the claim asserted was in fact made.  As the authorities state, the relevant issue is not whether a claim is expressly made.  In BCF15 v Minister for Immigration and Border Protection,[2] I summarised the authorities in the following terms (with citations omitted) –

   27.    A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether, by the failure to consider a particular issue the Tribunal had in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,  proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –

   Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).

   [2] (2016) 314 FLR 291

   28.    In the context of a protection visa, Gleeson CJ said the arguments and evidence of the applicant and the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.

   29.    The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov, and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (“NABE”).  Other authorities at single judge and Full Court level in the Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s ‘claim’. By way of illustration in Htun v Minister for Immigration and Border Protection Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414 of the Act that the Tribunal considers ‘the claims’ of the applicant stating “[t]he claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration”.

   30.    The Tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs as well as by the Full Court of the Federal Court of Australia (Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs. 

   31.    But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the Tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs.  As the Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when the claim is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

   32.    It is true that the Tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs, Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.

   33.    The settled position nowadays is that stated in NABE.  The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation, the Tribunal is not required to consider an application never made.

   34.    To my way of thinking, it would place an impossible burden on the Tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs  (“Applicant WAEE”) (French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.  Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the Tribunal.

   35.    Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –

   a)  a substantial clearly articulated argument relying upon established facts; 

   b)  a claim or claims and its or their component integers; 

   c)  evidence and material that the Tribunal accepts to raise a case not articulated; 

   d)  an unarticulated claim that is raised squarely on the material available to the Tribunal;  and

   e)  not an application or claim never made.

   36.    As Robertson J held in Minister for Immigration and Citizenship v SZRKT, “[a]lthough ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.

   37.    Once the ‘claim’ that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS (“SZJSS”).

3. The applicant relied on various passages from the tribunal’s reasons to demonstrate that the relevant claim was made and that, it having been made, it was not properly addressed.  The relevant paragraphs were 84, 85, 86 and 87 then paragraphs 99 and 100 of the tribunal’s reasons.  It is necessary to set out those paragraphs. 

   84.    Whilst there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka, other sources contest these claims. In 2012, the UK Home Office noted that these allegations lack substance. Furthermore, reports from the NGO Freedom from Torture identified returnees with an actual or perceived connection to the L TTE. As noted above, the tribunal does not accept that the applicant has or will be perceived to have such a connection in light of earlier findings in this decision in relation to his profile.

   85.    DFAT has advised that it is aware of a small number of torture/mistreatment allegations by returnees but that verification of such allegations is complicated by the fact that many such allegations have been made anonymously, often to third parties. DFAT further noted that:

   ... there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, with relatively few allegations of torture or mistreatment... Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.

   86.    The tribunal’s assessment of the country information before it, including that contained in submissions from the applicant's representative, is that it does not indicate that all returnees/failed asylum seekers are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Rather, it appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers (from a western country) may be of adverse interest to the authorities. In light of its findings regarding the applicant’s profile and claims the tribunal does not accept that he has a profile of interest to the Sri Lankan authorities.

   87.    On the evidence before it and taking into account the applicant's circumstances and profile, the tribunal does not accept that the standard questioning and security checks that the applicant would face upon his return to Sri Lanka amounts to either serious harm or significant harm. The tribunal is further not satisfied on the evidence before it that there is a real chance or risk that the applicant would be subjected to serious or significant harm during such questioning/checks either upon his arrival in Sri Lanka or at any other time after he is released from detention upon arrival given that, as noted above, the tribunal does not accept that the applicant has a profile that would be of interest to the Sri Lankan authorities. The tribunal gives little weight to the applicant’s assertion that someone he knows was imprisoned upon return to Sri Lanka given the applicant’s lack of knowledge about that individual’s circumstances claiming to only have seen it on the news and not know much about the person. The tribunal does not accept that there is a real chance or risk that the applicant will be imprisoned for being a returned asylum seeker.

   …

   99.    The tribunal has considered the representative’s submissions on the likelihood of imprisonment but based on the above information and findings, the tribunal finds that the chance or risk that that the applicant would spend more than a few days maximum in prison after his return to Sri Lanka due to having been charged with breaching Sri Lankan immigration laws or for any other reason, is remote. The tribunal has considered whether the applicant would face a real chance or risk of serious or significant harm during the limited period he would be held in prison.

   100.  Country information indicates that prison conditions in Sri Lanka may not meet international standards due to overcrowding, poor sanitary facilities. Torture has been reported to be used by the authorities in some cases to extract information or confessions from suspects and other incidents of ill treatment have been noted. Given its findings in previous sections in relation to the applicant’s other claims, the tribunal does not accept that he faces a real chance of serious harm for reasons of his Tamil ethnicity or profile as a young Tamil man, imputed LTTE political opinion, his work constructing a road, as a returnee/failed asylum seeker or any other Convention ground while in prison for a maximum of a few days upon his return to Sri Lanka. As the tribunal does not accept that the applicant had ‘old problems’ in the past, it does not accept that these problems will become known while he is in prison for a short period as a result.

   (with citations omitted)

1. In my view, those paragraphs were not to be construed in the way that the applicant contended.  In considering the applicant’s contentions about this alleged claim, the minister took issue with the characterisation of the information as the “phenomenon of torture and abuse”.  The minister rhetorically said, “whatever that might mean”.

2. The tribunal’s reasons did contain some references to torture.  For example, such a reference was in paragraphs 85 and 100 of the tribunal’s reasons.  However, in neither place did the tribunal reference a specified claim by the applicant that he feared harm if returned to Sri Lanka on account of torture.  I agree that the phrase “phenomenon of torture” was not used by the applicant and that the applicant did not establish that the phenomenon of torture was of great importance, in the manner contemplated in Minister for Immigration and Citizenship v Khadgi.[3]

   [3] [2010] FCAFC 145

3. So far as the matters recorded in particular 1(b)(i)‑(iv) were concerned, the minister argued that in reality the applicant was inviting an impermissible merits review under the guise of judicial review.

4. In his written submissions under ground 1(b), Mr Krohn identified how the tribunal focused on inconsistencies in the applicant’s version of events at the entry interview and his claims before the delegate and the tribunal.  In response to my invitation for submissions based on AVQ15, Mr Krohn said the matters set out below called for detailed examination and none was given.  Those issues were –

   The Applicant maintains his submissions that this aspect of the Tribunal’s decision is affected by jurisdictional error, in that:

   “33. …...the Tribunal failed to consider:

   (i) The limited purpose of the Entry Interview – general information about the Applicant and his arrival in Australia, and why he should not be removed at that time (CB 15);

   (ii)     the limited duration of the Entry Interview – 1 hour 31 minutes (CB 15);

   (iii)    the fact that the Entry Interview was conducted through an interpreter – thus reducing effective communication time to about 45 minutes (CB 15);

   (iv)    the fact that the Entry Interview was conducted 3 years and 5 months before the Tribunal’s hearing;

5. Mr Krohn said the tribunal’s failure to consider those matters was critical to the assessment of the applicant’s credibility.  Mr Petrie for the minister relied on the passage from AVQ15 where the Full Court held that the decision maker is to give appropriate attention to all relevant material in making a finding of inconsistency, citing Attorney-General (NSW) v Quin.[4]  Mr Petrie also relied on the passages in AVQ15 to the effect that even where it is open to the tribunal to find that a person has given inconsistent evidence, the decision maker needs to assess the significance of the inconsistency and the weight to be given to it.

   [4] (1990) 170 CLR 1

6. In this case the inconsistencies on which the tribunal relied were in three places in its reasons between paragraphs 57 and 59.  In paragraph 57 the tribunal observed that the applicant provided different accounts of his encounters with SLA officers.  In his entry interview the applicant said he had attended a when four drunk SLA officers approached him.  However, in his evidence to the tribunal (replicated between paragraphs 25 and 26 of the tribunal’s reasons), the applicant said that he was in a work hut when the officers approached him.  In paragraph 58 the tribunal observed that the applicant had said during his entry interview that while he was working he was approached by four people who were going to hit him, whereupon another individual told the applicant to run away.  The applicant said he then slept in the jungle for the night.  On the other hand, during the hearing before the tribunal, the applicant said he ran away and slept in the jungle upon the drunk SLA officers attending the hut.  In paragraph 59 the tribunal noted that the applicant had said during the entry interview that, after the encounter with the SLA officers at his shop, he returned to his workplace where he was again threatened by the SLA officers.  On the other hand, in his protection visa application and review application, the applicant claimed to have immediately returned to his home village after encountering the SLA officers at the shop and that he did not return to his workplace.

7. Then, at paragraph 60 of its reasons the tribunal made observations about the variances in the entry interview.  It said the following –

   At the hearing the applicant was not able to provide any explanation for why the account set out in the entry interview record differed from his subsequent account. Written submissions on this matter from his representative argue that it is not unreasonable for the applicant’s account at entry interview to conflate or confuse two separate incidents given the circumstances of the interview. While the tribunal acknowledges that the applicant did not have the assistance of his representative at the time of the entry interview, it is not convinced that the circumstances of that entry interview would have led to the confused account provided by the applicant. No evidence has been provided regarding any particular unusual circumstances of the applicant's entry interview.

8. The inconsistencies identified in paragraph 57, 58 and 59 of the tribunal’s reasons must be properly characterised as cogent or important to justify the tribunal relying on the inconsistencies in reaching the conclusions that it did.  The applicant’s different accounts of his encounters with SLA officers were important.  The discrepancy identified in paragraph 58 was likewise important as was the discrepancy mentioned in paragraph 59.  In my view the tribunal was entitled to express the observations it did about the variances in the applicant’s version of events as recorded in the entry interview as compared to his version of events as given before the tribunal.

9. To the argument advanced by Mr Krohn that the tribunal failed to consider the matters in particulars 1(b)(i), (ii), (iii) and (iv), it seemed to me that by reason of the High Court’s observations in Minister for Immigration and Multicultural Affairs v Yusuf,[5] the tribunal was not required to make a finding of fact on any and every matter that an applicant said was material.  To that end, merely because there was no reference in the tribunal’s decision to particular material did not give rise to an inference that the material was not considered.  The minister’s submission was correct when the minister said there was no reason to assume that the tribunal did not have regard to the limited purpose of the entry interview, its limited duration, the fact that it was conducted through an interpreter or the fact that it was conducted more than three years earlier.  Further, the minister sought to distinguish this case from AVQ15 by contending that none of the matters the applicant highlighted arising from the entry interview constituted “significant information” with the consequence that none required express consideration.  

   [5] (2001) 206 CLR 323

10. I agree.

11. I also agree with the minister’s contentions that the applicant was in reality seeking to agitate issues as if this application for judicial review were in truth a merits review.  It is not permissible to convert an application for judicial review into a merits review.

Ground two

1. Under this ground the applicant argued that the tribunal erred in interpreting or applying the law.  He relied on the High Court’s observations in Chan Yee Kin v Minister for Immigration and Ethnic Affairs[6] for his contention that in finding the applicant did not have a real chance of persecution on return to Sri Lanka or a real risk of serious harm the tribunal showed that it misinterpreted or misapplied the correct legal test.  The applicant put his contentions in respect of this ground in the following terms –

   Unless, with a high degree of certainty, there had been a definite and enduring cultural change away from violence and torture – and the evidence did not go so far – the Tribunal could not have made the conclusion that the applicant does not have a real chance of persecution on return to Sri Lanka, or a real risk of significant harm, if it had correctly understood and applied the important principle in Chan’s case.

   [6] (1989) 169 CLR 379

2. That somewhat overstated the position in my view.

3. I do not agree that the tribunal could not have reached the conclusion it did.  I do not accept that the tribunal fell foul of the test in Chan’s case.

Ground three

1. In answer to the applicant’s contentions under this ground the minister said the applicant’s complaints did not reach the requisite level of extreme illogicality or irrationality as was required by Minister for Immigration and Citizenship v SZRKT.[7]  There is considerable force in that proposition.  On either of the two particularised bases, the applicant failed to show that the tribunal’s decision was in the realm of extreme, assuming (which I do not) there was unreasonableness at all.

   [7] (2013) 212 FCR 99

Conclusion

1. None of the grounds succeeded.  I dismiss this application and order the applicant to pay the minister’s scale costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     20 December 2018