ANY16 v Minister for Immigration
[2018] FCCA 2588
•13 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANY16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2588 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether the Tribunal erred in consideration of the complementary protection criterion or otherwise fell into jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2A), 424A, 425 |
| Cases cited: AGH15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 1797 |
| Applicant: | ANY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 246 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 5 March 2018 and 21 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
BRG 246 of 2016
| ANY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 3 March 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka of Tamil ethnicity arrived on Christmas Island in July 2012. He lodged an application for a protection visa on 16 January 2013. In support of his application he provided a statutory declaration of 11 January 2013 in which he claimed that in 2006 two of his friends (“S” and “K”) were shot near a local shop. The Applicant claimed he heard the shooting and that when he went to investigate he saw that S had been killed but that K was still alive. He claimed that he was prevented from taking K to hospital by a nearby group of men on motorbikes. He claimed that on his way home he was stopped by soldiers in a laneway, asked for his national ID card and had his identification details recorded.
The Applicant claimed he later heard that K had been taken to hospital by ambulance but had died. He believed that the EPDP was responsible for the killings, as the men he saw “did not look like army people and…spoke Tamil well”, and had motorbikes without numberplates which was something only the EPDP could do because they worked with the Army.
The Applicant claimed that he could not report the shooting to the police or the Human Rights Commission because the EPDP was supported by the government. He claimed to fear he would be harmed by the police, the CID or the EPDP if he reported the shooting.
The Applicant claimed that after the shooting unidentified men had made inquiries about him at his home, his relatives’ homes and at the auto stand at which he worked. He claimed that the Army made more frequent inquiries and, for the first time, asked for him by name. He believed that the Army and the EPDP wished to harm him because he had seen the face of one of the men responsible for the shooting (who had taken off the cloth covering his face to tell him to go away).
The Applicant also claimed that three days after the shooting, three men wanted to hire him as a driver and would not accept a different driver. He claimed he was suspicious and worried they were from the EPDP or the Army and intended to harm him. He claimed that men continued to come looking for him at his auto stand and at his home and that on one occasion he was physically assaulted by people from the Army.
He claimed that in September 2008 he fled to Saudi Arabia. He returned to Sri Lanka in September 2010 hoping that as the war was over, he would be safe. He claimed he had volunteered himself to the Saudi Arabian authorities and had been deported to Sri Lanka.
The Applicant claimed that when he returned to Sri Lanka he was questioned by the CID for two hours at the airport and asked why he went to Saudi Arabia. He did not mention that he left because he had seen the face of a person responsible for a shooting and feared harm.
The Applicant claimed that some five or six months later he again began to be targeted, that “grease men” came to his home and to his mother’s home on two occasions, that the EPDP also visited his mother’s home, and that he was again physically assaulted by members of the Army.
The Applicant left Sri Lanka in July 2012. He claimed that since he had been in Australia his wife had told him that men had come to the home asking about him, that she had said that he was overseas and that they had said they would return when they heard that he had returned.
The Applicant claimed to fear he would be killed or “made to disappear” if he returned because he saw the face of an EPDP member who he believed was one of those responsible for shooting two men from his area. He also claimed to fear that he would be targeted because he was a young Tamil person from Jaffna. He claimed to fear the authorities and the EPDP and that the Sri Lankan authorities would not protect him.
In written submissions of 20 December 2013, the Applicant’s migration agent claimed that the Applicant feared harm of various kinds at the hands of the authorities, including the EPDP, the CID, the Army and “any other” pro-government forces, including by reason of his Tamil ethnicity; because he witnessed an EPDP shooter; his actual or imputed political opinion; his deportation from Saudi Arabia; his illegal departure from Sri Lanka and as a failed asylum seeker. He claimed that he would not receive protection from the authorities and would be discriminatorily denied effective state protection.
The application was refused. The delegate accepted the Applicant’s claim about events of 2006, but was not satisfied there was a real chance he would suffer serious harm or a real risk of significant harm on any of the suggested bases.
The Applicant sought review by the Tribunal. His agent provided an additional pre-hearing written submission of 18 February 2016 which summarised the Applicant’s claims as a fear he would be arrested, questioned and seriously harmed by the Sri Lankan authorities (including the EPDP) because he was a young Tamil male from Jaffna in the northern province who was thought to have witnessed a shooting by the EPDP. The submission addressed issues in relation to the delegate’s decision. It summarised the bases on which the Applicant claimed to fear harm on Refugees Convention grounds as based on his Tamil ethnicity; and/or his imputed political opinion in support of the LTTE or against the Sri Lankan government on account of his Tamil ethnicity; his scars (said to be as a result of the physical attacks he had experienced); his origins from Jaffna in the northern province; his illegal departure from Sri Lanka; and/or his extended presence in Australia as an asylum seeker. He also made claims based on membership of particular social groups of “witness of an EPDP shooting”, “young Tamil males from the Northern Province”, “young Tamil males from Jaffna” and/or “Tamil returned failed asylum seekers”. The claim to fear harm based on the Applicant’s deportation from Saudi Arabia referred to in the submission to the Department was not repeated in this submission.
In a further statement dated 17 February 2016 the Applicant provided additional information and sought to clarify some of his earlier evidence about past events. He also claimed that a UNP candidate he had spoken to about the 2006 incidents had been shot and killed by the EPDP while he was still in Sri Lanka and that his mother had told him that a former leader of the EPDP from their area had moved into the next door property.
The Applicant attended a Tribunal hearing. The only evidence before the court of what occurred in that hearing is the Tribunal’s account in its reasons for decision.
The Tribunal Decision
In its reasons for decision the Tribunal summarised the Applicant’s claims in his statutory declaration of 11 January 2013 and statement of 17 February 2016. It referred in some detail to the representative’s submissions of 18 February 2016 in relation to the Applicant’s claims and circumstances in Sri Lanka and relevant country information.
The Tribunal accepted that the Applicant was a Hindu of Tamil ethnicity from Jaffna. It found that his evidence in relation to the shooting of two people in May 2006 had been reasonably consistent and detailed. While the Tribunal had some doubts, it accepted as plausible that the Applicant’s friend and another man were shot and that the Applicant had wanted to take his friend to hospital. However on the basis of the available information and because the Tribunal had credibility concerns (which it discussed further in its reasons) it did not accept that the men who shot the two people were members or associates of the EPDP.
In addition, for reasons which it gave, the Tribunal had difficulty accepting that the Applicant was subsequently targeted as claimed. It was not satisfied that the Applicant was specifically targeted by the Army when he was stopped in the laneway and asked for his identification, being of the view that, given that there had been a shooting, it was reasonable there would be an Army presence in the laneway (as well as on main roads) and that they would ask people for identification. The Tribunal was also of the view that if the Applicant had been of particular interest to the Army at that time it was difficult to see why they would just ask for his identification and not take any other action against him. While the Tribunal accepted as plausible that the Applicant was stopped by the Army as claimed, it did not accept that he was stopped because he was specifically targeted or that he was of particular adverse interest to the Army.
The Tribunal was also of the view that it was implausible that if the Applicant was of any adverse interest to any group that for about two years they would look for him, but never find him. It was not persuaded by his explanations that he moved around. As the Applicant’s evidence was that he moved to relatives’ homes, the Tribunal was of the view that it was not unreasonable to assume that if he was wanted, the people searching would have found him at these homes which, according to the Applicant, they also visited. The Tribunal found it difficult to accept that if such men had gone to these relatives’ homes the Applicant would have chosen these homes as places to stay when he was fearful of being found.
While the Tribunal stated that it did not expect the Applicant to be able to provide specific details of incidents that were said to have occurred almost ten years ago, it found that the lack of detail and the vagueness in the Applicant’s responses raised doubts about his claims and his credibility generally.
The Tribunal also found it difficult to understand why, if the Applicant was of particular interest to the Army for any other reason, when they visited his home during a September 2006 round up, they would just place a tick against his name, smile and leave as the Applicant had claimed.
The Tribunal recorded that it had discussed with the Applicant his evidence about being assaulted by the Army and his different accounts of this incident. The Tribunal considered the Applicant’s explanation that when his first statutory declaration was being prepared he was “advised” not to provide details, but was not persuaded by such explanation. It stated:
27. The Tribunal noted that the statutory declaration appears to have been prepared with the assistance of a solicitor. The applicant subsequently agreed that the version outlined in the statement is much more comprehensive than the one provided in the statutory declaration. He stated that his current representative wanted him to elaborate and provide further details. The Tribunal indicated to the applicant that this is a significant claim and the fact that it was not mentioned earlier in the process, namely in the statutory declaration provided in support of the application for a protection visa could suggest fabrication. The applicant said “okay” but contended that the claim is true. In oral submissions to the Tribunal, the applicant’s representative agreed that there was no specific mention of the group in the statutory declaration but that this was mentioned in the course of the protection interview with the Department. The representative further submitted that it is important for the Tribunal to consider the context in which the statutory declaration would have been prepared, namely by the taskforces and in a short period of time which could explain brevity.
28. The Tribunal appreciates the circumstances in which the statutory declaration would have been prepared. The Tribunal acknowledges that there would have been time constraints and that the practitioners in those circumstances do their best to achieve the best possible lawful outcome for whom they are acting. However and as noted in the course of the hearing, the statutory declaration is detailed, comprehensive and appears to have been prepared with the assistance of a solicitor. The Tribunal has carefully considered the explanations in the submissions but finds them unconvincing. It is important to note that the applicant is claiming that he has suffered serious long-term injuries as a result, yet he said very little about it in the statutory declaration forming one of the most crucial documents in his application for a protection visa. Given those circumstances, the Tribunal is of the view that not mentioning the group in the statutory declaration provided by the applicant at the primary stage, as well as the brevity of the claim as described at paragraph 18 raise serious doubts about the veracity of this claim and general credibility.
The Tribunal addressed the Applicant’s evidence that he went to Saudi Arabia in 2008 using his own passport to leave Sri Lanka and his oral claim that he had no difficulties departing because he used an agent with CID connections and paid money to a CID officer. It raised with the Applicant the fact that in his statutory declaration there was no mention of a claim that he paid a CID officer to facilitate his departure from Sri Lanka. The Tribunal was of the view that the delay in making such significant claims raised serious doubts about their veracity and the Applicant’s general credibility.
The Tribunal continued:
31. The Tribunal asked the applicant if he had any difficulties in entering Sri Lanka 2010 (sic) when he returned from Saudi Arabia. The applicant stated that he was questioned at the airport by the police about when and why he left Sri Lanka. He said they also asked him if he was associated with the LTTE. The Tribunal asked the applicant how many police officers questioned him and he stated that there was one police officer and one uniformed person and he did not know who that person was. He said that person did not say anything and that he was questioned for about two hours. The Tribunal referred to the statutory declaration provided by the applicant in support of the visa application and indicated that in relation to this claim, he had stated that he was questioned by the CID. He stated that his cousin had subsequently told him that the CID dressed in police clothing to avoid being identified. He said the person was talking to him in Tamil and no Tamils are employed as police officers so it had to be the CID. The Tribunal is of the view that the inconsistency raises doubts about the veracity of the claims and the applicant’s credibility.
The Tribunal expressed concern about the vagueness and lack of detail in the Applicant’s responses to questions at the hearing in relation to the circumstances in which he had approached a UNP candidate for advice and in relation to other problems with the EPDP in 2011 or 2012. It was of the view that this evidence also raised doubts about the veracity of these claims and the Applicant’s credibility.
The Tribunal also had regard to the fact that the Applicant could not recall the details of when grease men went to his mother’s house. Given the vagueness of the Applicant’s responses and its credibility concerns, the Tribunal was not satisfied that grease men went to the Applicant’s mother’s home, that they were interrupted by his brother on one occasion and left soon after, or that any member of the family, including the Applicant, was targeted for any reason, or would be targeted by these men.
The Tribunal recorded that the Applicant had confirmed that neither he nor any other member of his family had been associated or involved with the LTTE or any political group. It concluded:
36. In consideration of the evidence as a whole and given the above noted concerns, whilst the Tribunal has accepted that the applicant's friend and another were shot in 2006, the Tribunal does not accept that they were shot by any associate of the EPDP, or that the applicant saw the face of one of the culprits when he pulled his cloth off his face, or that the applicant is perceived by anyone to have been able to identify the culprit, or that subsequent to the shooting, anyone including but not limited to members of the Sri Lankan army or the EPDP, ever went to the applicant's home or the home of any relative looking for the applicant, or that he avoided getting caught by moving houses, or by hiding, or that three days after the shooting, three men went to his auto stand asking about him, or that he was worried that they were from the EPDP or the army had intended to cause him harm, or that he had approached the UNP candidate, or that the candidate had given the applicant any advice, or that he only drove people whom he knew, or that 10 days subsequent to the shooting, his friend told him that men came to the auto stand, or that the men were asking about the applicant, or that there was a roundup in 2006 during which the applicant was harmed by anyone, or that any scars he has on his body and lips were caused by the claimed events, or that he paid more to go to Saudi Arabia for the claimed reasons, or that he had used an agent to was it (sic) associated with a CID officer which facilitated the applicant's ease in departure from Sri Lanka to Saudi Arabia, or that even if questioned by the CID on his return to Saudi Arabia for two hours, this had anything to do with the shooting, or that it suggests that the applicant was of any adverse interest to the Sri Lankan authorities, including but not limited to the CID, or that the applicant has ever been physically assaulted by members of the army, or that any self- harm he has inflicted was due to the claimed fear or pressure, or that since his arrival in Australia his wife has told him that men continued to come to the house asking for him, or that the applicant has any subjective fear as claimed and for the stated reasons, or that a former leader of the EPDP has moved to the property next to his mother's home, or that the house belongs to the man's sister, or that his mother had told him that many people come and go from the man's house, or that he left Sri Lanka because he feared harm as claimed.
The Tribunal was not satisfied that the Applicant had suffered any of the claimed past harm or that he had any profile on the grounds claimed which was or would be of any adverse interest to the Sri Lankan authorities or that he would face extortion because he had witnessed the shooting or for any other reason. In particular, it was not satisfied on the evidence as a whole that the Applicant had a profile such that there was a real chance or a real risk of him suffering serious or significant harm on the basis of the shooting of the two men.
The Tribunal considered the possibility of future harm on any other claimed basis, including the Applicant’s Tamil ethnicity, as a failed asylum seeker or a returnee from a Western country or as an unlawful departee from Sri Lanka. It referred to a discussion of country information at the hearing.
The Tribunal had regard to the fact that it had not accepted that the EPDP were responsible for or associated with the 2006 shooting of the two men. For the same reasons it did not accept that the Applicant had any adverse profile. It took into account that the Applicant did not claim that he was or had ever been an LTTE member, supporter or sympathiser. It did not accept that he had a profile that would increase his risk of being harmed.
The Tribunal accepted that the Applicant was a young Hindu Tamil from the northern province; that he may be considered as a failed asylum seeker and a forced returnee from a Western country who had departed unlawfully and who had been in Australia for an extended period of time; that he had arrived in Australia by boat; and that he had scars. It was satisfied that such factors did not mean that the Applicant had an adverse profile, that he would be perceived as having links or associations with or being a supporter of the LTTE or an opponent of the Sri Lankan government, or that he would be targeted by the authorities, ill-treated as contemplated by the Act or subjected to more scrutiny than other returnees.
The Tribunal had regard to country information indicating that it was those who had actual or perceived strong LTTE links or sympathisers who could be targeted. As it had not found that the Applicant had a profile of such involvement, association or suspicion or that he was of interest to the EPDP, the Tribunal did not accept that he would be imputed with an adverse political opinion by the authorities for the claimed reasons.
The Tribunal had regard to recent country information in relation to changes in the treatment of Tamils since the end of the conflict in Sri Lanka. It was not satisfied there was a real chance the Applicant faced any harm amounting to persecution or a real risk of significant harm on the basis of being a young Hindu Tamil from the northern province or for any other claimed reason. It acknowledged that Tamils had faced a degree of discrimination and ill-treatment in Sri Lanka, but was not satisfied on the information before it that, without more, being Tamil meant that the Applicant would face harm amounting to serious or significant harm or that he would be suspected of being associated with the LTTE merely on the basis of being a young Tamil or on any other basis. It concluded that having regard to the evidence cumulatively it was not satisfied the Applicant faced any discrimination or ill-treatment amounting to serious or significant harm on the basis of being a Tamil.
The Tribunal considered the Applicant’s claimed fear of harm as a failed asylum seeker and/or a returnee from a Western country. It had regard to country information in relation to standard entry procedures and treatment of those who had departed Sri Lanka illegally. It found there was not a real chance that the Applicant would suffer serious harm on the basis of being a Tamil failed asylum seeker from the northern province or a returnee from Australia. It had regard to the fact that, on balance, country information indicated that it was essentially those with an adverse profile who could encounter harm in Sri Lanka if returned from a Western country as a failed asylum seeker.
The Tribunal acknowledged on the basis of country information that because the Applicant had departed Sri Lanka illegally when he came to Australia there was a real chance he may be questioned on return, arrested and charged under the I&E Act, held for a few days on remand in jail before being released on bail and that conditions in prison may be crowded and poor. It accepted that almost all such persons were granted bail on personal recognisance with the requirement a family member stand as guarantor, but with “no requirement to pay for bail”. It accepted that the Applicant may ultimately be fined, but gave weight to DFAT advice that while a prison sentence and/or a significant fine were available penalties, these were seldom enforced. It also took into account DFAT advice that it was unaware of any allegations of mistreatment of returnees in general at the airport or on remand. The Tribunal was of the view that, given extensive media interest, if returnees were being mistreated some credible evidence would have been revealed. On the evidence as a whole the Tribunal did not accept that returnees were being mistreated by the authorities in Sri Lanka.
In addition, the Tribunal was satisfied the Sri Lankan laws in relation to illegal departure were laws of general application applied in a non-discriminatory manner and serving a legitimate purpose and that such laws were not selectively enforced or applied in a discriminatory way for a Convention reason, but applied to all persons who departed illegally.
The Tribunal was not satisfied that the treatment faced by returnees who departed illegally would give rise to persecution within the Act. Although it accepted that the conditions in which the Applicant might be kept on remand would cause him to suffer discomfort and unpleasantness, on the evidence and information before it the Tribunal did not accept that in the Applicant’s particular circumstances he would be persecuted for any Convention reason.
Further, on the information before it, the Tribunal was not satisfied that the treatment faced by Sri Lankan returnees who departed unlawfully either at the airport, in their community, on remand while awaiting bail or when later dealt with by the courts amounted to persecution or gave rise to serious harm, even when assessed cumulatively with what was accepted of the Applicant’s personal profile and circumstances. Nor was it satisfied that the process gave rise to differential treatment for a Convention reason.
The Tribunal was satisfied the Applicant did not meet the Refugees Convention criterion on the basis of his illegal departure, being a young Hindu of Tamil ethnicity from the northern province, a failed asylum seeker or a returnee from Australia, or for his illegal departure or for any other reason.
The Tribunal imported its anterior findings of fact into its consideration of the complementary protection criterion, referring to the fact that for the reasons given it was not satisfied that the Applicant had any profile that would associate him with the LTTE or that he was of any interest to the EPDP or to any arm of the Sri Lankan authorities. The Tribunal found on the evidence as a whole that there was not a real risk that the Applicant would suffer significant harm on the basis of being a young Hindu Tamil from the northern province, or for having lived in Australia.
On the basis of the information discussed and the conclusions it had reached as to what would await a person in the Applicant’s circumstances, the Tribunal was also not satisfied that the treatment faced by the Applicant as a failed asylum seeker or returnee from a Western county gave rise to a real risk of significant harm as contemplated by s.36(2A) of the Act. The Tribunal continued:
86. For the same reasons, the Tribunal accepts that the applicant will be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (to Australia by boat and without a passport), the Tribunal is satisfied that he will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities on his return to Sri Lanka. For the stated reasons, the Tribunal is not satisfied that he has any adverse profile in Sri Lanka which will be revealed throughout the process or in connection with that process, or that he has a profile that would mean that he would be closely scrutinised, or ill-treated. The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant and he may have to pay a fine. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given. The weight of country information also indicates that the prospect of the applicant being detained for a prolonged period of time and paying a fine to be remote and not likely to result in hardship to the applicant that constitutes significant harm as contemplated by section 36(2A) of the Act.
87. The Tribunal also notes that, despite the substantial number of reported involuntary returnees to Sri Lanka, including a large number who departed Sri Lanka illegally by boat, and despite the high level media interest in those returnees, there has been no credible and consistent reporting of such returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act.
88. While the Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable, the Tribunal does not accept that spending time in such conditions amounts to 'significant harm' as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. On the evidence before it, the Tribunal is satisfied that the conditions have not arisen due to demonstrable intent on the part of the Sri Lankan authorities to inflict severe pain or suffering. Accordingly, the Tribunal does not accept that there is a real risk that the applicant will be subjected to 'torture' as defined while he is on remand for a relatively short period.
89. The definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act requires that pain or suffering be 'intentionally inflicted' on a person and the definition of 'degrading treatment or punishment' requires that the relevant act or omission be 'intended to cause' extreme humiliation. Mere negligence or indifference is not sufficient, what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is 'intentionally inflicted' on prisoners as required by the definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are 'intended to cause' extreme humiliation as required by the definition of 'degrading treatment or punishment’.
The Tribunal concluded that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka that there was a real risk he would suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period he may spend in jail or on remand or for any other reason. It was not satisfied the Applicant met the complementary protection criterion as a person who had left Sri Lanka illegally, even when considered cumulatively with what was accepted of his claimed risk profile and having regard to the independent information referred to by his representative.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
The Applicant sought review by application filed on 14 March 2016. On 23 June 2016 a Registrar made directions which included giving the Applicant the opportunity to file and serve any amended application by 4 August 2016. The matter was ultimately listed for hearing on 5 March 2018. The Applicant did not file pre-hearing written submissions as ordered. The First Respondent filed detailed written pre-hearing submissions addressing the grounds in the application.
On the Friday before the Monday hearing date the Applicant filed, without leave, an amended application. It was brought to the attention of the solicitors for the First Respondent shortly before the hearing. This amended application contains some 12 grounds, although, as is discussed further below, several of these are mere unparticularised assertions of error in relation to various aspects of the Tribunal findings or conclusions.
I gave the Applicant leave to rely on the amended application and the opportunity to make oral submissions in relation to any concerns he had about the Tribunal decision and procedures, whether raised in his application, his amended application or otherwise. The parties were also given the opportunity to file post-hearing written submissions. The First Respondent did so. The Applicant did not file post-hearing submissions.
As the Applicant is self-represented I have considered the grounds in the original application as well as in the amended application and also issues raised in his oral submissions.
Grounds in the Application
It is convenient to consider first the grounds in the original application of 14 March 2016. There are five unnumbered paragraphs. The first two grounds are as follows:
I had a legitimate expectation that the AAT would contact me for a second hearing and/or that the AAT would invite me for comments if they found any negative information in respect of my AAT review after the hearing.
The AAT did not give me an opportunity after the hearing, before this decision was taken, to respond to negative information by way of a further hearing or respond to me in writing of their intention to use this information to refuse my application.
I gave the Applicant the opportunity to explain the basis for his claims that the Tribunal should have offered him a second hearing and that certain information should have been put to him for comment. He claimed that at the Tribunal hearing he had been asked about Saudi Arabia and his claimed harm by the Army, but that while he had given a detailed account of what had happened, based on concerns regarding these accounts the Tribunal had “rejected [his] complete case”. He did not otherwise elaborate on or clarify these concerns which seek impermissible merits review.
However, as the First Respondent acknowledged, these grounds may be understood as contentions that the Tribunal failed to comply with its obligations under s.425 and/or s.424A of the Act.
In relation to s.425 of the Act, if the Applicant was intending to assert that the Tribunal failed to raise a dispositive issue or issues with him (in particular in relation to his claims about past harm), there is no evidentiary basis for any such contention in the absence of a transcript of the Tribunal hearing. Further (and to the contrary), it appears from the Tribunal reasons for decision that dispositive issues were discussed at the hearing. In particular, the Tribunal recorded that it raised with the Applicant its concerns about his claims about past harm by the Army, the circumstances of his travel to and return from Saudi Arabia and other aspects of his claims. The Tribunal also recorded that it put to the Applicant relevant country information. There is nothing in the material before the court to suggest that there was any failure by the Tribunal to raise dispositive issues with the Applicant.
The application also contends that if the Tribunal “found” negative information after the hearing it should have invited him to a second hearing. However there is no evidence that further information was provided to or came to the attention of the Tribunal after the Tribunal hearing such as to raise fresh dispositive issues. The Tribunal’s obligation under s.425 of the Act was to invite the Applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal extended such an invitation to the Applicant. He attended a hearing. There is nothing in the material before the court to suggest that in the circumstances of this case the Tribunal was under an obligation under s.425 to invite the Applicant to a further hearing.
The Applicant did not particularise any negative “information” in respect of which he said the Tribunal was obliged to invite his comments. No information within s.424A(1) of the Act has been identified. It is well-established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Nor does s.424A(1) extend to the Tribunal’s subjective appraisals, thought processes, determinations, or defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]).
Insofar as the Applicant’s concern appears to be that the Tribunal should have put to him (whether at the hearing or in writing) its provisional reasoning, there is no such obligation under s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [47]). No basis has been established for any “legitimate expectation” that the Applicant would be invited to attend a second hearing.
To the extent that these grounds may be understood as a contention that the Tribunal was obliged to put to the Applicant country information to which it had regard, such information falls within the exception in s.424A(3)(a) of the Act and hence does not enliven the obligation in s.424A(1) of the Act.
No jurisdictional error is established on any basis contended for in the first two grounds in the application.
The third ground in the application is as follows:
The AAT made the following jurisdictional error, in the context of my claim for complementary protection pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth). The AAT fell into jurisdictional error in failing to consider whether there was a real risk that I would suffer “significant harm” If I were to return to Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the I&E Act). As defined in s 36(2A), “significant harm” includes “degrading treatment or punishment” which in turn, includes acts that cause, and are intended to cause, “extreme humiliation which is unreasonable”. I contend that the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents. I will have to suffer continually in the detention until a relative and/or family member bail me out. In fact there is no family members in Colombo to vouch and bail me. During the interrogation I will be identified as a witness to EPDP’s human rights violation (the EPDP armed group still works together with the Sri Lankan security forces in Sri Lanka) and subsequently, I will be harmed.
(errors in original)
The Applicant did not elaborate on this ground. The First Respondent addressed, in detailed submissions, issues which may be seen as arising in relation to the Tribunal’s consideration of the complementary protection criterion.
First, insofar as this ground may be understood as a contention that the Tribunal did not consider the Applicant’s claims under the complementary protection criterion, such a claim is not made out. It is the case that the Tribunal imported its anterior findings of fact in considering whether the Applicant met the complementary protection criterion. However this does not in itself constitute jurisdictional error. The Tribunal may refer to previous findings of fact in determining whether an applicant meets the complementary protection criterion (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32]). In addition, to the extent that the Tribunal’s assessment of the Applicant’s claims under the complementary protection criterion required additional findings of fact, the Tribunal made such findings, for example in relation to the Applicant’s treatment under the I&E Act.
This ground also involves a contention that the Tribunal fell into error by failing to consider whether the I&E Act was intended to cause extreme and unreasonable humiliation. It is possible that this part of ground 3 may have been pleaded in the hope that the High Court would reverse the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556. However in SZTAL v Minister for Immigration and Border Protection; SZGTM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 Kiefel CJ, Nettle and Gordon JJ held at [26]-[28] (and also see Edelman J at [114]) that the requirement that “cruel or inhuman treatment or punishment” be “intentionally inflicted” within the meaning of s.5(1) of the Act connoted that there be an “actual subjective intention to inflict harm in order to engage Australia’s protection obligations under s.36(2)(aa) of the Act”. In light of the decision of the High Court, the Applicant’s contention in this respect cannot succeed. In this case the Tribunal was satisfied that the Sri Lankan laws relating to illegal departure were laws of general application, applied in a non-discriminatory manner and serving a legitimate purpose. It was also satisfied that conditions on remand had not arisen due to demonstrable intent on the part of the authorities to inflict severe pain or suffering or to intentionally inflict or cause harm within the definitions of concepts amounting to significant harm.
Insofar as there is a contention in ground 3 of the application that the enactment of the I&E Act would in itself constitute significant harm, this was not a claim that was squarely raised or that fairly arose on the material before the Tribunal in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321 (also see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]-[61] and note the remarks of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1].
Hence, as Judge Smith observed in AGH15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 1797 at [53], “… even if it was possible to find that the Sri Lankan Parliament intended to cause extreme humiliation by enacting the Immigrants and Emigrants Act, it was not incumbent upon the Tribunal to consider whether it was in that case…”. Thus, any failure by the Tribunal to deal with such an issue would not amount to jurisdictional error.
In any event, to the extent that this ground may be understood as contending that the enactment of the I&E Act by the Sri Lankan parliament in itself could be considered an “act” that caused or was intended to cause extreme humiliation that was unreasonable and hence an act that was within the definition of significant harm for the purposes of s.36(2A) and s.5(1) of the Act, in BNS15 v Minister for Immigration and Border Protection [2016] FCA 61 at [13] Nicholas J accepted the correctness of the trial judge’s reasons (in BNS15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2877 at [7]) for rejecting a contention that enactment of this legislation could, in itself, constitute such an act.
Insofar as ground 3 referred to the possibility of imprisonment and a fine on conviction for illegal departure, the Tribunal addressed country information in this respect in finding that the penalties of imprisonment and a substantial fine were seldom enforced and that the Applicant did not have potential risk factors for such penalties. It accepted that the Applicant may be questioned, held on remand and ultimately fined. Such findings were reasonably open to the Tribunal on the material before it for the reasons it gave. To the extent that this aspect of ground 3 takes issue with the Tribunal’s conclusions about likely penalties, it seeks impermissible merits review.
In relation to the claim that the Applicant had no family member to “bail” him, the solicitor for the First Respondent addressed whether the Tribunal’s findings with respect to the consequences for the Applicant of being charged with an offence relating to his illegal departure were affected by any error of the type considered in SZTQS v Minister for Immigration and Border Protection & Anor [2015] FCCA 978 at [45]-[46] as upheld on appeal by Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507.
The Tribunal accepted that the Applicant faced being charged for his illegal departure and that he could spend a relatively brief period on remand while awaiting a bail hearing. It stated:
73. Advice from DFAT and other sources indicate that returnees charged with offences related to illegal departure may be held on remand for a period before being released on bail. DFAT has advised that returnees are arrested and held at the airport for up to 24 hours. They are then produced before a magistrate to apply for bail. All persons are granted bail on personal recognisance, with the requirement for a family member to stand as guarantor. There is no requirement to pay for bail. If the person needs to be held for more than 24 hours, for instance when a person arrives on the weekend or a public holiday, they are placed in the remand section of the Negombo Prison until the court is in session.
74. In December 2013, DFAT advised that ‘For bailable offences under the I&E Act [Immigrants and Emigrants Act], post has been informed that, as a matter of practice, bail is granted to almost all people that were passengers on people smuggling ventures. Bail will be granted at the first available instance (and minors will not be charged with any offence)’. In March 2013 DFAT advised that it “is not aware of allegations of mistreatment of returnees while on remand. [DFAT] does not monitor the treatment of returnees while on remand.”
(footnotes omitted)
Relevantly, the Tribunal also referred to and quoted a December 2015 DFAT country report to the effect that ordinary illegal departees were granted bail on personal recognisance with the requirement for a family member to stand as guarantor, but with no requirement to pay for bail, although detainees may sometimes need to wait until a family member came to court to collect them.
In contrast, the earlier country information referred to by the Tribunal in SZTQS had suggested that a family member was required to provide “surety”. It was in that context that Judge Emmett held that a “crucial plank” in that Tribunal’s reasoning was that the applicant’s family member would provide surety and that in failing to raise such issue with the applicant the Tribunal had failed to discharge its obligation under s.425 of the Act. Further, in SZTQS the applicant had been taken to the local courthouse before leaving Sri Lanka and his mother had paid bail money for his release. He had also given evidence that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally. Insofar as in SZTQS the Court proceeded on the basis that providing surety involved the payment of money because the applicant’s mother had paid bail money on a previous occasion, no such assumption should be made in this case (see SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 at [80]).
In SZTAP, Robertson and Kerr JJ held that while it was unnecessary to consider whether the decision of Griffiths J on appeal in SZTQS was correctly decided. However, their Honours observed that it did “not stand for a high-level proposition that every reference to a family member being required to provide surety involves a breach of s.425(1) of the Act”. Rather it was said to be fact specific (see SZTAP at [76]-[77]).
In this case the more recent information before the Tribunal was to the effect that there was no requirement to pay for bail. The Tribunal made an express finding that there was no requirement to pay for bail. The circumstances were not such that the payment of bail money could be expected. There is also no evidence that the Applicant claimed to the Tribunal that he had no family members in Sri Lanka. No jurisdictional error has been established in relation to this aspect of the Tribunal decision.
The Applicant also contended that during “the interrogation” the Applicant would be identified as a witness to the EPDP’s human rights violation and subsequently harmed. This appears to be a reference to questioning at the airport on return. However the Tribunal addressed the possibility of harm in such a context. It found that the Applicant had no profile of being suspected of involvement with the LTTE and that he was of no interest to the EPDP. It accepted that as a returnee to Sri Lanka he would be subject to entry procedures and may be questioned at the airport under standard procedures. However it found no evidence to support allegations that returnees such as returning Tamils or failed asylum seekers who did not have an actual or perceived association with the LTTE or meet an adverse risk profile would be mistreated at the airport or on remand. It also considered, but rejected, the possibility of subsequent harm to the Applicant based on his claims about witnessing past activities of the EPDP. This part of ground 3 otherwise seeks impermissible merits review.
No jurisdictional error is established on any of the bases contended for in ground 3.
Ground 4 in the application is as follows:
The AAT did not make its decision according to the law as there was no evidence to make a number of finding findings and the AAT decision indicates that there are major issues which RRT did not consider. I am aware that there are errors of interpretation which might have contributed to my AAT’s refusal.
For this purpose, I need my entry interview, AAT hearing CDs and the transcript. I need to listen all the hearing CDs and wish to see the error of interpretations, as I claim.
(errors in original)
The Applicant did not file a transcript of the Tribunal hearing, despite being given the opportunity to do so. At the hearing I asked him about his concerns about what happened in the hearing and his claim that there were errors of interpretation. He said he had listened to the CDs of his hearings. The only claimed concern or error of interpretation he identified was a claim that the interpreter had not properly explained or translated his claim that the motorbike gang beat him and that they were from the Army. He claimed that his evidence was interpreted as the Army beat him and that his evidence about the motorbike gang was omitted.
However, contrary to this suggestion, it is apparent from the Tribunal reasons for decision that it understood and considered the Applicant’s claims as he now explains them. It recorded his initial brief claims in his statutory declaration to have been hit “by the army” resulting in scars and other problems and his more detailed subsequent claim (in his 2016 written statement) that he was stopped and beaten by the Sri Lankan Army Field Bike Group. The Tribunal recorded that it also raised with the Applicant its concern about his failure to have mentioned the field bike group in his initial written statutory declaration. It addressed his explanation.
Insofar as the Applicant’s concern is that he mentioned the group in his interview with the Department, this was not disputed by the Tribunal. The Tribunal recorded in some detail the discussion at the hearing of the Applicant’s claims in this respect and the difference between his initial written claim that he was hit badly by the Army and the more detailed and comprehensive account he gave in his statement of 18 February 2016. In that context it noted that the Applicant had not initially mentioned the field bike group that he later claimed was involved. It considered the Applicant’s explanation for his failure to mention the field bike group in his initial statutory declaration and the brevity of his claim at that time.
In these circumstances, the Applicant’s general and unsupported claim that there was some failure by the interpreter to translate all that he said in this respect is not such as to raise any concern that he was not afforded the requisite hearing under s.425 of the Act or to suggest that the Tribunal in any way misunderstood or failed to consider any aspect of the Applicant’s claims.
There is no evidence to support any claim that there were any errors in interpretation at the Tribunal hearing such as to establish jurisdictional error.
Insofar as ground 4 amounts to a contention that there was “no evidence” for the Tribunal to make a “number” of its findings (which were not further identified), to succeed on a “no evidence” ground the Applicant must demonstrate that there was no evidence at all upon which impugned findings could have been based (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-356 per Mason CJ). That has not occurred in the present case. Moreover, the Tribunal’s findings were based on its assessment of country information, the Applicant’s own evidence and its adverse credibility findings which were reasonably open to it on the material before it for the reasons which it gave and which are not such as to raise concerns of the nature considered by the Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496.
Moreover, contrary to the contention in this ground, there is nothing in the evidence before the court to suggest that the Tribunal failed to consider an issue or a claim raised by the Applicant, whether consisting of an integer of his claims or critical evidence, in a manner constituting jurisdictional error.
In oral submissions the Applicant expressed a concern that the Tribunal had not considered his claim that when he went to Saudi Arabia he paid money to leave Sri Lanka. It emerged that this was not a concern that this issue had not been considered by the Tribunal, but rather a concern that the Tribunal did not accept his claim that he had to pay money to an agent with CID connections to leave Sri Lanka for Saudi Arabia. However the Tribunal’s findings in this respect were reasonably open to it on the material before it for the reasons which it gave. The Tribunal considered this aspect of the Applicant’s claims. The Applicant’s disagreement with the Tribunal’s conclusion in that respect seeks impermissible merits review. I also note that, as considered further below, there is nothing in the Tribunal’s approach to this issue that is indicative of legal unreasonableness.
The Applicant also expressed concern that the Tribunal had not asked him further questions about the circumstances in which he left Sri Lanka for Saudi Arabia. He said this was why he had not volunteered more information. However, it is for an applicant to put his claims before the Tribunal and for the Tribunal to assess them. This is not a case in which there is anything to suggest that the Tribunal failed to make an inquiry about a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429. The same may be said in relation to the Applicant’s oral complaint to the court that the Tribunal failed to ask him “detailed” questions about the incident in which he claimed he was stopped by the motorbike group.
I have borne in mind that in the Applicant’s agent’s submission to the Department (but not to the Tribunal) one of the factors which was said to contribute to an actual or an imputed political opinion against the EPDP, the SLA and pro-government forces, was the Applicant’s “deportation” from Saudi Arabia.
As the First Respondent pointed out, this aspect of the Applicant’s claims was not otherwise developed. Rather, it was submitted to the Tribunal that as the Applicant had never been jailed for committing a serious offence and did not have a criminal record, it was reasonable to expect that he would not have been detained or arrested at the airport on his return to Sri Lanka from Saudi Arabia in 2010, that the police would have undertaken an investigative process and realised that he did not possess a criminal or terrorist background and that he had returned from Saudi Arabia because he was there illegally. In light of country information, the agent had submitted that it was completely reasonable that in the absence of an adverse high profile and having regard to the information that would have been available to the Sri Lankan authorities, the Applicant would have been able to pass through Sri Lankan Immigration on his return from Saudi Arabia without alerting the authorities. It was not otherwise explained how the Applicant feared any future harm for reason of his past deportation from Saudi Arabia.
To the extent that the Applicant’s deportation from Saudi Arabia was said to contribute to an adverse profile in the eyes of the Sri Lankan authorities, the Tribunal recorded his original claims that he returned to Sri Lanka voluntarily in September 2010 when the war was over, that he had paid money to the Saudi Arabian police, and asked to be returned to Sri Lanka and had then been deported.
The Tribunal addressed the Applicant’s claims about the circumstances of his departure from Sri Lanka to travel to Saudi Arabia in 2008 and also the claimed events on his return. It recorded that it asked the Applicant if he had any difficulties entering Sri Lanka in 2010 when he returned from Saudi Arabia. He stated he was questioned at the airport by the police about when and why he left and was asked if he was associated with the LTTE. The Tribunal referred to the statutory declaration in which he had said that he had been questioned by the CID. He explained that his understanding was that the CID dressed in police clothing to avoid being identified, that the questioner spoke Tamil, but that as Tamils were not employed as police officers, he thought the questioner had to be from the CID. The Tribunal was of the view that inconsistencies in relation this claim raised doubts about its veracity and the Applicant’s credibility. It also found that even if the Applicant was questioned by the CID on his return from Saudi Arabia, it was not satisfied that this had anything to do with the claimed 2006 shooting or, relevantly, that it suggested that the Applicant was of any adverse interest to the Sri Lankan authorities, including but not limited to the CID. In other words, the Tribunal considered whether deportation from Saudi Arabia contributed to a profile that put the Applicant at risk.
More generally, any claim in relation to the impact on the Applicant’s profile of events regarding his travel to or from Saudi Arabia was considered but rejected in a finding of greater generality. The Tribunal was not satisfied that the Applicant had an adverse profile in the eyes of the authorities (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]).
Ground 4 in the application and the associated concerns raised by the Applicant do not establish jurisdictional error.
The Amended Application
The grounds in the amended application filed on 2 March 2018 are as follows (numbers added to each paragraph):
1. The AAT erred in not accepting all the matters as set out in Paragraph 36 of the AAT’s decision.
2. The AAT erred in forming the view and/or finding and/or being satisfied that the Applicant’s veracity was affected contrary to his interests due to vagueness, lack of details, alleged inconsistencies as referred to in Paragraphs 30 to 35 and 24 of the AAT’s decision.
3. The AAT was in error in finding that the Applicant paid more money and used the agent with the CID connection was central to the Applicant’s refugee claims leading the AAT to have serious doubts about the veracity of his Refugee Claims and general credibility.
4. The AAT was in error in finding that not mentioning the field bike groups in his statutory declaration raise serious doubts about the veracity of the Applicant’s refugee claims and general credibility when the Applicant was advised not to provide or describe the Applicant’s refugee claims in details and was not asked (Paragraphs 26 and 28 of the AAT decision).5. The AAT was in error in not accepting all of the matters are set out in Paragraphs 36, 37, 38, 42, 43, 52, 53, 54, 69, 78 and 82 of the AAT’s decision being findings no reasonable person would have made on the evidence and which findings are unreasonable.
6. AAT erred in not being satisfied the Applicant will be at risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka
7. AAT erred in finding the Applicant does not meet S 5H (1) or S 36 (2) (a) of the Migration Act
8. AAT erred in not being satisfied there is a real chance the Applicant would face harm on return to SL as a failed asylum seeker, now or in the reasonably foreseeable future, or that the Applicant faces a real chance of persecution now or in the reasonably foreseeable future,
9. AAT erred in finding the Applicant does not have a well-founded fear of persecution within the meaning of S 5J;
10. AAT erred in finding there is not a real chance of harm to the Applicant now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinion, as an ethnic Tamil from Sri Lanka, as a returned Tamil asylum seekers or a combination of these if returned to Sri Lanka
11. AAT erred in finding the Applicant does not meet S 36 (2)(aa) of the Migration Act.
12. AAT erred in affirming the Delegate’s decision not to grant the applicant a protection visa. AAT erred in not granting the Applicant a protection visa,
13. Such errors amounting to errors in law.
(errors in original)
First, to the extent that these “grounds” consist of general contentions that the Tribunal “erred” in making certain findings without any basis for such assertion (such as grounds 1 to 2 and 6 to 12), they do not establish jurisdictional error, but do no more than seek impermissible merits review.
In ground 3 further issue was taken with the Tribunal’s view of the significance of the Applicant’s claims about how he departed Sri Lanka for Saudi Arabia in 2008. Contrary to this ground, the Tribunal did not find generally that the Applicant’s claim about paying money and using an agent with CID connections was “central to [his] refugee claim”, although it did find that these were significant claims that were central to the Applicant’s claims in relation to how he was able to depart Sri Lanka in 2008 after all the problems he claimed he had had and despite his claims that people were looking for him because he had witnessed the 2006 shooting. However the Tribunal was satisfied that the Applicant’s delay in making these claims raised serious doubt about their veracity and the Applicant’s general credibility. If it is intended to be suggested that it was only these particular findings that led to rejection of the veracity of the Applicant’s credibility or his refugee claims generally, that is not the case. The Tribunal’s finding in this respect was only one aspect of numerous reasons it gave for rejecting the Applicant’s claims that he had suffered any of the claimed past harm (or that he had a profile of adverse interest to the Sri Lankan authorities or that he would face extortion, whether because he witnessed the shooting or for any other reason).
To the extent that this concern is reflected in the legal unreasonableness contention raised by ground 5 it is discussed further below. No jurisdictional error is established on the basis contended for in ground 3.
Ground 4 takes issue with the fact that the Tribunal did not accept the Applicant’s explanation for not mentioning his claim to have been beaten up by the field bike group in his initial statutory declaration. The Applicant also raised this issue at the hearing. He expressed concern about the Tribunal’s failure to accept his explanation that he was advised not to provide or describe his refugee claims in detail at the initial stage. The Tribunal considered this aspect of his explanation for the different accounts and gave reasons for not accepting it which were reasonably open to it on the material before it. Even if another decision maker may have been satisfied with the Applicant’s explanation in this regard, there is no suggestion that this was the only conclusion available on the evidence. As considered further below, in circumstances where a significant claim had not been mentioned although the statutory declaration was otherwise detailed and comprehensive and appeared to have been prepared with the assistance of a solicitor, it was open to the Tribunal to have regard to the fact that the Applicant later provided a significantly more comprehensive version of events. The Tribunal’s findings are not such as to demonstrate or contribute to legal unreasonableness or other jurisdictional error. Ground 4 is not made out.
In ground 5 in the amended application the Applicant expressed concern about the Tribunal’s conclusions about his credibility and various aspects of his claims in terms which assert legal unreasonableness. It was contended that the Tribunal erred in not accepting all of the matters set out in specified paragraphs of its reasons (which are conclusory paragraphs in relation to various aspects of the Applicant’s claims) and that these were findings no reasonable person would have made on the evidence and which were unreasonable.
Ground 5 was not addressed in any meaningful sense in the Applicant’s oral submissions. The First Respondent provided detailed written submissions in relation to the issue of whether the Tribunal’s findings were unreasonable in the legal sense (and see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [12]-[13] and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [59]-[65]).
As Griffiths J (with whom Wigney J agreed) stated in Stretton at [61] the principles in Singh may be summarised as follows:
(a) legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li (at [42]);
(b) there is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable (at [43]);
(c) there are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process but the concept of legal unreasonableness can also be “outcome focused” where there is no “evident and intelligible justification” (citing Li at [66] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J) (at [44]);
(d) where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be rare where the reasons demonstrate a justification but the ultimate exercise of the power is found to be legally unreasonable ([45]–[47]); and
(e) perhaps most importantly of all, the standard of legal unreasonableness applies across a wide range of statutory powers, but the indicators of legal unreasonableness are found in the scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as being fact dependent (at [48]).
The first part of the Tribunal decision impugned in this ground relates to the findings at paragraphs 36-38 rejecting the Applicant’s claims to have experienced past harm and hence that he would not face harm in Sri Lanka because he had witnessed the 2006 shooting or for any other reason based on his claims about past events.
The Tribunal accepted that the Applicant’s friend and another person were shot in 2006. Its rejection of his claims of consequential past harm were reached on the basis of specific findings about particular aspects of these claims, as well as the adverse credibility finding. These findings were reasonably open to the Tribunal on the material before it for the reasons which it gave. The Tribunal’s findings were based on rational grounds and arrived at on consideration of matters that were logically probative in relation to the issue of credibility (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and CQG15).
Further, as pointed out for the First Respondent, adverse credibility findings do not necessarily require positive evidence and may simply be a matter of disbelief of evidence because of surrounding circumstances (see WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; (2004) 240 FCR 261 at [17]). The Tribunal may make an adverse credibility finding on a cumulative basis (see W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703), as it did in this case in paragraph 36 of its reasons as set out at [28] above.
In paragraph 37 the Tribunal concluded on the basis of the findings it had made that it was not satisfied that the Applicant had suffered any of the claimed past harm, that he had a profile such that he would be of adverse interest to the authorities or that he would face extortion or other harm because he had witnessed the shooting or for any other reason. In essence, as stated at paragraph 38, in considering the evidence as a whole the Tribunal was not satisfied that the Applicant had a profile that would mean there was a real chance or a real risk of him suffering serious or significant harm on the basis of the shooting of the two men.
These findings must also be seen in the context of the Tribunal’s earlier detailed consideration of particular aspects of the Applicant’s claims about past harm. The Tribunal addressed the Applicant’s various claims about the circumstances of his claimed interactions, including with the Army, after the 2006 shooting. It was reasonably open to the Tribunal to find that the Applicant was not “targeted” as claimed for the reasons which it gave and on the material before it. The fact that the Tribunal did not find plausible the Applicant’s claims that being stopped by the Army in a lane after a nearby shooting indicated he was of particular interest to them, was not a finding that was so unreasonable that no decision maker could have reached it. The Tribunal’s reasoning that it was reasonable that there would be an Army presence and that they would ask people for identification after such an incident was logical and probative. There was an evident and intelligible justification for its conclusions. The same may be said in relation to the Tribunal’s findings about the Applicant’s claims to have been targeted on subsequent occasions. In essence, the Tribunal found it implausible that the Applicant would have been able to evade detection in circumstances where, on his own evidence, the people looking for him had attended upon the houses of his relatives where he claimed he was hiding. It was also reasonably open to the Tribunal to have regard to the fact that the Applicant’s evidence in this (and other respects) lacked detail and was vague; to be of the view with respect to the Applicant’s claim of being subject to a roundup, that the fact that the Army did no more than tick the Applicant’s name off a list before leaving his house indicated that he was not of interest; and to find that the Applicant’s failure to mention the field bike group in his initial statutory declaration and the brevity of the description of this claim raised serious doubts about its veracity and in relation to his general credibility. These findings are not such as to demonstrate or contribute to legal unreasonableness.
As discussed above, insofar as the Applicant submitted that his oral evidence to the Tribunal about being beaten by the field bike group was mistranslated and misunderstood as a claim that he was beaten by a gang of men on motorcycles, there is no evidence to establish any errors in interpretation at the Tribunal hearing. Moreover, as also discussed above, it is plain from the Tribunal’s reasons that it understood the Applicant’s claim that the field bike group was part of the Army and that it considered the claim on this basis. The Tribunal did not reject the Applicant’s evidence because it understood that he was introducing a new claim about having been beaten on another occasion. Rather, it disbelieved his evidence for reason of his failure to advance significant aspects of this claim at an earlier time. The Tribunal had similar concerns with respect to other aspects of the Applicant’s claims (such as his claim to have paid money and used an agent with CID connections to depart Sri Lanka when he went to Saudi Arabia). In addition the Tribunal had regard to vague aspects of the Applicant’s evidence about problems he claimed he had encountered which added to its doubts about his credibility.
It was in light of all of these concerns that the Tribunal rejected the Applicant’s claims to have experienced harm in the past or to have an adverse profile because of past events (as also discussed at paragraphs 38 and 42). Such an approach was reasonably open to the Tribunal in circumstances where it considered, but rejected, aspects of the Applicant’s claims and also made a cumulative finding as to his credibility.
The Applicant also sought to impugn as legally unreasonable the Tribunal’s findings at paragraphs 43 and 52-54 in relation to his risk of harm in the future on the basis of his Tamil ethnicity and other attributes. These findings were based in part on the fact the Tribunal did not accept that the Applicant had any adverse profile because of past events, as well as the fact that he had had no association or involvement with the LTTE and also relevant country information. The Applicant’s disagreement with the Tribunal’s conclusions is not such as to establish legal unreasonableness. The Tribunal addressed his claims in this respect. It accepted that the Applicant was a young Hindu Tamil from the northern province who may be considered a failed asylum seeker and a returnee from a Western country who had departed Sri Lanka unlawfully, that he had been in Australia for an extended period of time after arriving by boat and that he had scars. It considered whether such factors meant that the Applicant had an adverse profile or that he would be perceived as having any links or association with the LTTE or being an LTTE supporter or an opponent of the Sri Lankan government such that he would be targeted or mistreated by the authorities within the Act or subject to more scrutiny than other returnees because of his profile. The Tribunal also considered country information before concluding that it was not satisfied that there was a real chance that the Applicant faced any harm amounting to persecution or significant harm on the basis of being a young Hindu Tamil from the northern province or for any other claimed reason. In this context it acknowledged that Tamils had faced a degree of discrimination and ill-treatment in Sri Lanka, but was not satisfied that this amounted to serious or significant harm.
As indicated, the Tribunal’s reasoning was based in part upon its earlier findings (which were reasonably open to it on the material before it). Insofar as the Tribunal relied on country information, it is well-established that the weight the Tribunal gives to country information is a matter for it (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).There was an evident, transparent and intelligible justification for the Tribunal’s conclusions and its decision. It cannot be said that the Tribunal’s findings in this respect were legally unreasonable.
The same may be said in relation to the Applicant’s concerns about the Tribunal’s finding at paragraph 69 that he, with his attributes, would not suffer serious harm on the basis of being a Tamil failed asylum seeker from the northern province or a returnee from Australia in the absence of an adverse profile. Such finding also has to be seen in the context of the decision as a whole. The Tribunal had regard to country information which it discussed in some detail. There is nothing in this reasoning which is demonstrative of legal unreasonableness.
Issue was also taken with the Tribunal’s finding at paragraph 78 that it did not accept that returnees were being mistreated by the authorities in Sri Lanka. It made this finding in light of its acceptance that the Applicant may be arrested and imprisoned for a few days on remand because he had departed Sri Lanka illegally and that conditions in prison on remand may be crowded and poor. It accepted that he may be questioned on return and ultimately fined, but gave weight to country information in considering whether there was a real chance of mistreatment on return. The Tribunal acknowledged that the UNHCR and DFAT may not monitor court processes or follow up what happened to persons charged under the I&E Act, but was of the view that given the extensive media interest in this issue, if returnees were being mistreated some credible evidence would have been revealed. The Applicant’s disagreement with these findings does not establish legal unreasonableness.
Finally, the Applicant took issue with paragraph 82 of the Tribunal reasons in which the Tribunal reached its ultimate conclusion in relation to the Refugees Convention criterion. In consideration of the evidence as a whole the Tribunal was “therefore” satisfied that the Applicant did not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially or significantly for one or more of the five Convention reasons if he returned to Sri Lanka on the basis of his illegal departure, being young, Hindu, of Tamil ethnicity from the northern province, a failed asylum seeker, or a returnee from Australia or for his illegal departure or for any other reason.
As discussed above, the Tribunal’s earlier findings of fact were reasonably open to it on the material before it for the reasons which it gave. In such circumstances, the Tribunal’s lack of satisfaction that the Applicant had a well-founded fear of persecution for a Convention reason was not legally unreasonable. Ground 5 is not made out.
Jurisdictional error is not established on any of the bases contended for in the amended application or otherwise in these proceedings. As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 13 September 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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