AOZ16 v Minister for Immigration

[2018] FCCA 2945

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOZ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2945

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175;

(2015) 238 FCR 404; 331ALR 571

Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62;

(1989) 169 CLR 379

Minister for Immigration & Ethnic Affairs v  Guo  Wei Rong [1997] HCA 22;

(1997) 191 CLR 559

Applicant: AOZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 610 of 2016

Judgment of: Judge Nicholls

Hearing date: 20 April 2018

Date of Last Submission: 20 April 2018

Delivered at: Sydney

Delivered on: 18 October 2018

REPRESENTATION

Counsel for the Applicant: D Godwin by direct access

Counsel for the Respondents: G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application made on 18 March 2016 and amended on 20 April 2018 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 610 of 2016

AOZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 March 2016 and amended on 20 April 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 18 February 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 20 June 2012 as an “unauthorised maritime arrival” (CB 29 to CB 30).  The applicant made his application for the visa which was received by the Minister’s department on 25 January 2013 (CB 16 to CB 79). The applicant’s claims to fear harm were contained in a Statutory Declaration dated 10 November 2012 and attached to his application for the visa (CB 48 to CB 53) (see further below).

2. The applicant claimed to fear harm on the basis of his Tamil ethnicity and as a Tamil fisherman. The applicant claimed to have fled Sri Lanka with his family and lived in a refugee camp for two years in India between 2006 and 2008. The applicant and his family returned to Trincomalee (Sri Lanka) in 2008, and after working with his uncle packaging fish, the applicant started work as a fisherman with his father in 2009 ([2] at CB 48 to [7] at CB 49).

3. The applicant claimed that “boat passes” issued by the Sri Lankan government only allowed Tamil people to fish in “particular places and at particular times”. The applicant claimed the Sri Lankan Navy (“the SLN”) harassed Tamil fishermen, including the applicant, and on “more than ten occasions”, the navy had confiscated the fish from the boat he was working on, or they would be made to “dump” the fish they had caught back into the ocean if they were told they had been fishing in Sinhalese waters ([8] – [9] at CB 49).

4. The applicant claimed that he had seen his father, the captain of a Tamil fishing boat, “beaten with a baton on two occasions”, and that twice the applicant was made to jump into the water and swim back to his boat “for at least fifteen minutes” as he was not allowed to re-enter the boat “while the navy was still present”. The applicant claimed that “[h]arassment and extortion by the navy happened throughout the three and a half years before [he] left for Australia” ([10] at CB 49).

5. The applicant claimed that in 2012 Sinhalese men had tried to abduct him in a white van but he had “struggled and managed to escape and run away”. The applicant then stayed at home “[f]or 20 days” whereupon he then went to collect money for his father and the “same people in the white van tried to grab [him] again” but the applicant “managed to escape” ([13] at CB 50 to [18] at CB 51). The applicant then left for Australia and claimed to fear harm on the basis that he would be “abducted or killed” if he returned to Sri Lanka ([19] – [22] at CB 51).

6. The applicant attended an interview with the delegate on 18 June 2013 (CB 125.9). The delegate refused the application for the visa on 15 October 2013 (CB 116 to CB 147). The applicant applied for review to the Tribunal on 1 November 2013 (CB 153 to CB 158). The applicant was invited to, and attended, a hearing before the Tribunal on 29 April 2015 (CB 164 to CB 169 and CB 222 to CB 224). The applicant’s then representative sent pre-hearing written submissions to the Tribunal on 28 April 2015 (CB 180 to CB 221).

7. The applicant again appeared at a hearing before a reconstituted Tribunal on 20 November 2015 (CB 232 to CB 234 and CB 245 to CB 250). The Tribunal affirmed the delegate’s decision on 18 February 2016 (CB 255 to CB 281).

8. The Tribunal summarised the applicant’s claims to fear harm as they appeared in his protection visa application ([8] at CB 257 to [17] at CB 258), and then considered “Relevant independent country information” ([18] at CB 258 to CB 259, to [36] at CB 266), which included “Treatment of fishermen in Trincomalee” ([21] at CB 260 to CB 261 to [24] at CB 261). The Tribunal also discussed the evidence the applicant gave to the previously constituted and presently constituted Tribunal ([37] at CB 267 to [77] at CB 274).

9. The Tribunal noted that before the previously constituted Tribunal, the applicant’s “adviser” had ([52] at CB 270):

   “…indicated that the applicant wished to rely on his attempted abduction and also on the fact that he was harassed as a fisherman and the fact that this harassment had reached the stage of persecution. The applicant then provided some further details about the problems he had while fishing.”

10. The Tribunal reported that the previously constituted Tribunal had then discussed country information “regarding fishing licences and restrictions in Trincomalee” with the applicant, which indicated that the SLN’s role had significantly diminished. In response, the applicant said that he “believed his family would continue to have the same problems if he returned”, without providing any detail ([53] at CB 270). Regarding evidence given before the newly constituted Tribunal, the Tribunal noted that ([67] at CB 272 to CB 273):

    “…according to independent information cited above, the navy’s role diminished in the years after the war and the permit system allegedly favouring Sinhalese fishermen was abandoned in 2012. I asked the applicant about his [claims] regarding fear of persecution for reasons of being a Tamil fisherman. On the evidence so far, there were claims about discrimination and about individual encounters with the navy that had in some instances led to acts or threats of physical violence against him and his father. On the other hand, the applicant claimed that virtually all of the able-bodied males in his extended family continue to support their families through work as fishermen or fishmongers. Addressing this claim, the applicant said that Sinhalese fishermen have more access and freedom. He did not provide any recent evidence to support this. I have considered the applicant’s claims about fear of persecution for reason of being a Tamil fisherman but, in view of all the evidence the applicant has provided over time of relatives still making a living from fishing, and in view of restrictions disproportionately affecting Tamil fishermen having been lifted, I give the claim very little weight. I am not satisfied on the evidence before me that the applicant faces a real chance of persecution in the reasonably foreseeable future in Sri Lanka for separate or cumulative reasons of being a Tamil fisherman. I also note that for one reason or another he has worked in other occupations over time, such as in fish mongering with his uncle and also in the construction industry.”

11. The Tribunal found that the applicant’s family “had and has no significant links to the LTTE, actual or perceived” ([79] at CB 275). It also did not accept that there had been attempts to abduct the applicant in 2012, and found that he had “fabricated” the claims ([80] at CB 275).

12. Although the Tribunal did accept that the applicant was a Hindu Tamil fisherman from Trincomalee, it did not accept that he faced a real chance of being persecuted on return to Sri Lanka for reason of being a Tamil fisherman, or for any of the other reasons advanced by the applicant ([78] at CB 274). The Tribunal found that the applicant did not meet either criteria for the grant of the visa (s.36(2)(a), or s.36(2)(aa) of the Act).

The Application to the Court

1. As mentioned above, the applicant filed his application to the Court on 18 March 2016. At that time, he was unrepresented before the Court. Following a number of Court events, the matter was ultimately set down for final hearing on 20 April 2018. The applicant filed written submissions on 29 March 2018 that had been prepared by counsel and indicated that the applicant would be seeking leave at the final hearing to rely on an amended application. The Minister filed written submissions on 13 April 2018 addressing the sole ground of the amended application.

2. At the final hearing, the applicant’s counsel sought, and was granted, leave to rely on that application. The sole ground of the amended application to the Court is in the following terms:

   “1. The Tribunal does not deal with all the integers of the claims of the applicant.

   Particulars

   The Tribunal does not address the applicant’s claim that as a Tamil fisherman he will be extorted by the Sri Lankan Navy.”

Consideration

1. The applicant’s written submissions (at [3]) directed attention to the following part of the applicant’s Statutory Declaration at [10] (at CB 49) which accompanied his protection visa application:

   “I saw my father get beaten with a baton on two occasions by navy officers, because he was the captain of the boat. Everyone else on board was told to jump in the water. Twice I was made to jump in the water and swim back to the boat, trying to follow the boat for at least fifteen minutes as we were not allowed to re-enter the boat while the navy was still present. Harassment and extortion by the navy happened throughout the three and a half years before I left for Australia.”

   [Emphasis added.]

2. The applicant submitted it was relevant to note how the delegate dealt with the applicant’s claim that as a Tamil fisherman, he would be the subject of “extortion” by the SLN if he were to return to Sri Lanka.

3. The relevant part of the delegate’s decision record is reproduced at Court Book pages 136 to 137.  In particular, the applicant submitted that the delegate addressed the claim to fear harm from the SLN and found this did not “amount to persecution”.

4. The applicant drew attention to the written submissions dated 24 April 2015 subsequently provided to the Tribunal (see CB 180 to CB 221).  The applicant’s submission now was that the claim was pressed in those submissions as follows (CB 182.7 to CB 183.3):

   “…We submit that there is a real chance that [the applicant] would face serious harm from the Sri Lankan authorities on account of the following Refugees Convention grounds, taken either individually or cumulatively:

   …

   - His membership of the particular social group of ‘Tamil fishermen’…”

5. The applicant’s submissions then directed attention to the Tribunal’s decision record (at [12] at CB 257), where the “substance” of the Statutory Declaration in relation to the issue relevant to the sole ground of the amended application, was said to be “reproduced” ([12] at CB 257):

   “The applicant claimed that he and his father were issued with boat passes by the navy and were only allowed to fish in certain areas and at certain times, whereas the Sinhalese were permitted to fish any time and at any place. He claimed the navy also came to the (sic) his father’s boat on more than ten occasions and fish were confiscated. He said that on other occasions the navy would make his father dump fish back into the ocean accusing his family of taking fish from Sinhalese fishing grounds. He said that on two occasions navy officers beat his father because he was captain of the boat. He said he and his father suffered harassment and extortion from the navy throughout the three and a half years before he left for Australia.”

6. The focus of the applicant’s argument in submissions was on [67] (at CB 272) of the Tribunal’s decision record, which is as follows:

   “I note that according to independent information cited above, the navy's role diminished in the years after the war and the permit system allegedly favouring Sinhalese fishermen was abandoned in 2012. I asked the applicant about his clams (sic) regarding fear of persecution for reasons of being a Tamil fisherman. On the evidence so far, there were claims about discrimination and about individual encounters with the navy that had in some instances led to acts or threats of physical violence against him and his father. On the other hand, the applicant claimed that virtually all of the able-bodied males in his extended family continue to support their families through work as fishermen or fishmongers. Addressing this claim, the applicant said that Sinhalese fishermen have more access and freedom. He did not provide any recent evidence to support this. I have considered the applicant's claims about fear of persecution for reasons of being a Tamil fisherman but, in view of all the evidence the applicant has provided over time of relatives still making a living from fishing, and in view of restrictions disproportionally affecting Tamil fishermen having been lifted, I give the claim very little weight. I am not satisfied on the evidence before me that the applicant faces a real chance of persecution in the reasonably foreseeable future in Sri Lanka for separate or cumulative reasons of being a Tamil fisherman. I also note that for one reason or another he has worked in other occupations over time, such as in fish mongering with his uncle and also in the construction industry.”

7. The applicant’s argument was that the Tribunal characterised the applicant’s claim as being that he claimed to fear persecution as it arose from, and limited to, his ability to earn a living.

8. The asserted error was that in considering the applicant’s claim in this way, the Tribunal did not consider the applicant’s claims to have suffered physical harm, and the threat of physical harm, at the hands of the SLN.

9. The applicant referred to SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 (“SZTAP”) at [14] and [17] to argue that in “extortion” cases, it was necessary to look beyond the subject of the extortion (in this case fish), and to look at the threat that underlies the act of extortion.

10. The applicant argued that in this case, it was not simply a question of the applicant being subjected to a fishing permit system, or his fish being taken. Rather, it was a question of whether the applicant faced a threat of physical mistreatment by the SLN.  In this case, the applicant claimed his father was beaten and the applicant was made to jump into the water.

11. The Minister took a different view to that of the applicant on the question of how the applicant had stated his claim to fear harm, and also as to how the Tribunal dealt with the claim as it was actually advanced by the applicant.

12. To make good these views, the Minister also, first, directed attention to the applicant’ Statutory Declaration of 10 November 2012 (CB 48 to CB 52).  The Minister’s argument was that [10] of the Statutory Declaration should not be read in isolation to the remainder of the Statutory Declaration.

13. In particular, the Minister’s argument was made with reference to [7], [8], and [9] (at CB 49) and as these inform [10] (at CB 49) of the Statutory Declaration, on which the applicant now relies.  At [7] (at CB 49) of the Statutory Declaration, the applicant set out that when he returned to Trincomalee in 2008 he commenced work in helping to package fish. He stated that in 2009, he “started to work as a fisherman with my father and would go out to sea.  I worked as a fisherman for 3.5 years”.

14. The Minister also submitted that at [8] (at CB 49) of the Statutory Declaration, the applicant set out the factual matrix of his claim to fear harm. In this, he expressly linked the need for possessing the appropriate fishing passes, the restriction of Tamil fishermen to certain fishing areas and at particular times which “were not good for fishing”, as being factors in his fear of persecution.  Further, that the applicant raised the claim of discrimination against Tamil fishermen because Sinhalese fishermen were not subject to any restrictions.

15. In this context, the applicant then set out (at [9] and [10] (at CB 49) of the Statutory Declaration) the harassment that he claimed he and his father were subjected to by the SLN.  That is, they were “harassed” because they were Tamil fishermen. Again, the applicant linked the mistreatment, and the fishing “in Sinhalese waters”. In all, this made up the claim arising from his being a Tamil fisherman (“the Tamil fisherman claim”).

16. In all therefore, the Minister submitted that while the applicant used the word “extortion” (at [10] (at CB 49) of the Statutory Declaration), the claim to fear harm,  as presented, was that in the past, he and his father were the subject of “mistreatment” by the SLN.  On occasion, the SLN confiscated, or forced them to dump their fish.

17. The usual and ordinary meaning of the word “extort” is, “obtain (money, a promise, a concession, etc.) from a reluctant person by threat, force, importunity, etc.” (Shorter Oxford English Dictionary, Sixth Edition). In essence, the taking of money by “force”.

18. In his submissions before the Court, the applicant made reference to SZTAP.  In that case, part of the factual matrix of the applicant’s claim to fear harm was that he had been the subject of extortion.  The Full Federal Court (per Logan J) found that (at [14]), “… [t]he very essence of extortion, if successful, is that the threat made to the victim will not be carried into effect providing that the demand made is satisfied”. 

19. In SZTAP the Court explained (per Logan J) at [17]:

    “To conclude that the reasons given by the Tribunal as to why it was not satisfied that the appellant was a person to whom Australia owed protection obligations were logical and rational would be to render that protection obligation largely ineffectual in cases grounded in claimed extortion for multi-faceted reasons which include being targeted for Convention-based reasons, if not to stand those protections on their head. The type of reasoning evident in paragraph [51] was rejected as fallacious by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration [2003] HCA 71; 216 CLR 473 at [43]:

    … The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

    (Original emphasis.)”

1. In the current case, the applicant submitted that the Tribunal failed to make any finding that there would be no harassment, of which presumably the extortion was a part, in the future, if he were to return to Sri Lanka.  That is said to be the claim which the Tribunal failed to address and consider in the sole ground of the amended application. The Tribunal was said to have considered a narrower point. That is, the applicant’s ability to subsist.

2. The applicant’s argument relied on SZTAP, and proceeded from the proposition that the task of the Tribunal was to determine whether there was a Refugee’s Convention motivation, on the part of the SLN, for extortion.

3. The Minister submitted that “the first step” for the Tribunal prior to that consideration, was to determine that it could be satisfied, on the evidence, that the events that were claimed to have occurred in the past, including “extortion”, actually occurred, and would occur, in the future.

4. I agree with the Minister’s submission.  The question of the motivation of the claimed persecutor, in this case the SLN, can only arise if the factual matrix claimed by the applicant was found to have occurred  (this was the situation in SZTAP).

5. However, there is also another antecedent step in this analysis.  That is, for the Tribunal to determine exactly what the applicant claimed as to past events and whether he claimed to fear harm in the future as a result of those events.  In short, what were the applicant’s claims to fear harm?

6. In his Statutory Declaration of 10 November 2012, the applicant claimed to have worked as a fisherman with his father since 2009 for three and a half years. He and his father were “harassed” and “mistreated”.  This included restrictions placed on where and when they could fish, his father being beaten on two occasions, the applicant having been made to jump in the water, and on more than ten occasions, their fish were either taken by the SLN, or they were made to throw the fish into the water.

7. As the Minister submitted, some care needs to be taken with the use of the word “extortion” as it appears in the applicant’s Statutory Declaration.

8. I put to one side the Minister’s submission that this may have been a word provided by the lawyer who assisted the applicant in the preparation of his case, including the Statutory Declaration (CB 52).  On the evidence, the contents of the Statutory Declaration were “interpreted” for the applicant by an interpreter and translator (see CB 53).

9. On the evidence, I proceed on the basis that the applicant must have, at least, “adopted” the use of the word when he made his Statutory Declaration (CB 48 to CB 52).

10. But even in this light, it is clear that the use of the word “extortion”, given the context in which it appears, was meant to convey that the “confiscation” of their fish by the SLN was part of the “harassment” he and his father suffered.  Clearly, the applicant’s evidence that on occasion he and his father were forced to dump the fish back into the water, cannot be seen, given the ordinary meaning of the word “extortion”, as a claim that the SLN sought to benefit from the fish being thrown away.  Rather, in context, the confiscated fish, and the fish dumped overboard, were part of the harassment meted out by the SLN.

11. It must be kept in mind that the argument advanced now by the applicant is that the Tribunal did not deal with all of the aspects of the Tamil fisherman claim, as it was set out in the applicant’s Statutory Declaration.

12. That directs attention to the Tribunal’s decision record.  That is, the evidence of what the Tribunal understood as being the applicant’s claims, and how it considered them.

13. In its decision record, the Tribunal set out its understanding of the applicant’s claims.  The Statutory Declaration of 10 November 2012 was a part of what the Tribunal described, on the evidence, correctly, as the applicant’s “original protection visa application” (CB 257).

14. The Tamil fisherman claim is set out at [11] (at CB 257) of the Tribunal’s decision record, and at [12] (at CB 257), the Tribunal provides a summary of the matters set out at [8], [9] and [10] of the applicant’s Statutory Declaration of 10 November 2012. Paragraph 12 (at CB 257) of the Tribunal’s decision record is reproduced above at [21].

15. I agree with the Minister that this is a fair and accurate summary of the Tamil fisherman claim.  It includes a reference to “extortion”.

16. It is to be remembered that the applicant made a number of claims in addition to the Tamil fisherman claim.  The Tribunal’s references as to that claim are interspersed throughout its analysis with the other claims in a logical, including chronological, progression.

17. At [21] (at CB 260) to [24] (at CB 261) of its decision record, the Tribunal set out country information under the heading of “Treatment of fishermen in Trincomalee”.  Amongst other things, the country information made reference to fishing restrictions on Tamil fishermen in the past, as enforced by the SLN.  The country information also noted a report that fishing restrictions in the Trincomalee area had been lifted from 20 June 2012.  It is to be noted that this is around the time the applicant left Sri Lanka (see [13] at CB 50 when read with [20] at CB 51).

18. In its decision record at [40] (at CB 267) to [54] (at CB 270), the Tribunal set out evidence given by the applicant to the Tribunal (as earlier constituted by another member).  Of relevance to the current consideration is the Tribunal’s report (at [52] at CB 270) that the applicant’s “adviser” made representations that amongst other matters, the applicant wanted to rely: “on the fact that he was harassed as a fisherman and the fact that this harassment had reached the stage of persecution” ([52] at CB 270).

19. The Tribunal also reported ([53] at CB 270):

    “The previously constituted Tribunal shared with the applicant some country information regarding fishing licences and restrictions in Trincomalee. Essentially the material indicates that whereas the navy took a prominent role during and soon after the civil war, its role had since been much reduced (see Background information above). In response, the applicant said he believed his family would continue to have the same problems if he returned. He did not, however, provide any details about such problems continuing in his absence: for example, when talking about his father’s situation as a fisherman as at the time of the April hearing, he merely said his father had no-one (like him) to help with the fishing; one might reasonably expect there to be more information about persecution of Tamil fishermen if the alleged harassment of the past had been continuing, particularly since the applicant later told me he was in touch with his family every other day.”

    [Emphasis added.]

20. As set out above, the Tribunal’s consideration of the Tamil fisherman claim is at [67] (at CB 272) of its decision record.

21. The following key matters are of note in the disposition of the sole ground of the amended application before the Court.  One, on the evidence before the Court, the applicant’s account of past events involving the Tamil fisherman claim was consistent throughout the processing of the protection visa application, and the subsequent conduct of the review by the Tribunal.

22. Two, the use of the word “extortion” in the applicant’s Statutory Declaration of 10 November 2012, and as recorded by the Tribunal in its decision record, must be read fairly and in context.  The “extortion” to which the applicant referred was a reference to his fish being confiscated, and/or that he was made to dump fish back in the water.  This confiscation and direction to dump the fish occurred when the applicant and his father, who were Tamils, were said by the SLN to be fishing in Sinhalese waters.

23. Three, while past events may be a useful guide, and of importance, the relevant test arising from the consideration of the criterion at s.36(2) of the Act is one of reasonable foreseeability (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559). That is, the test is a forward-looking test. Even if the applicant had been “persecuted” in the past, the statutory task for the Tribunal was the assessment of the real risk of such harm to the applicant in the reasonably foreseeable future.

24. The Tribunal’s analysis and consideration of the applicant’s Tamil fisherman claim proceeded on what, on the evidence, is an accurate understanding of the applicant’s claims to past harm and the likelihood of this harm occurring in the reasonably foreseeable future.

25. On a plain, and certainly on a fair, reading of its consideration as set out in its decision record, the Tribunal understood that the applicant’s claim of past harm as a Tamil fisherman was based on a variety of elements.

26. These were the restrictions placed on the times and locations where he and his father could fish, the physical threats to the applicant and the beatings of his father by the SLN, and the confiscation and dumping of their fish.

27. The use of the word “extortion” by the applicant, when read fairly and in context, was no more than an extreme description of the harassment he and his father suffered at the hands of the SLN.

28. The Tribunal did not reject the applicant’s claims as to past events.  This is not a case where the Tribunal found adversely to the applicant’s credit on this matter.

29. The Tribunal reasoned that since the occurrence of these past events, the restrictions on fishing in Sinhalese waters had been lifted, and as such, the discrimination against Tamil fishermen would not arise.

30. Nor, as the Tribunal noted, did the applicant provide any evidence to support the proposition that the Sinhalese fishermen, as at present and in contrast to the past, continue to have more freedom and have greater access to fishing areas than the Tamil fishermen

31. Further, the Tribunal relied on the applicant’s own evidence that despite his claims of what had occurred in the past, nearly all of the “able-bodied males in his extended family continue to support their families through work as fishermen or fishmongers” ([67] at CB 272).

32. While this, in part, may go to the question of the applicant’s capacity to subsist by earning a living as a fisherman in Sri Lanka, in context, and as reasoned by the Tribunal, it was evidence that the circumstances giving rise to the incidence of past harm (fishing restrictions and the like) no longer existed.

33. Ultimately, the Tribunal gave little weight to the Tamil fisherman claim (as a basis for finding the likelihood of persecution in the future) because the applicant’s family continued to fish, despite what had occurred in the past, and due to the fact that the discriminatory practices in favour of Sinhalese fishermen over Tamil fishermen had been lifted since 2012.

34. The applicant’s criticism of the Tribunal now is that it did not deal with all aspects of the Tamil fisherman claim, by failing to consider the motivation of the claimed persecutors, and limited its consideration to that of whether the applicant was able to subsist by fishing.

35. The applicant’s criticism is not accepted.  The Tribunal understood the ambit of the applicant’s Tamil fisherman claim and the elements said to constitute it.  It addressed all of these elements as claimed by the applicant.

36. However, in applying the reasonable foreseeability test, it was reasonably open to the Tribunal to find that, notwithstanding what had occurred in the past, the likelihood of harm in the future was remote.

37. The Tribunal considered the factual circumstances put before it.  It reasoned in light of the applicant’s own evidence as to his family’s current circumstances in relation to fishing in Sri Lanka, and country information available to it.  The Tribunal did not fail to deal with an aspect of the applicant’s Tamil fisherman claim.  The sole ground of the amended application is not made out.

Conclusion

1. The application, as amended, should therefore be dismissed.  I will make the appropriate order.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 18 October 2018