AVD15 v Minister for Immigration

[2016] FCCA 1924

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1924

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – request for Tribunal to take evidence by telephone from a Sri Lankan Member of Parliament – Tribunal refusing to do so – Tribunal not advising applicant of refusal to obtain further evidence prior to handing down decision – whether Tribunal applied the wrong test – whether Tribunal dealt with all the applicant’s claims – whether Tribunal’s decision unreasonable.

Legislation:
Migration Act 1958, ss.424, 424A, 426.

Cases cited:
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, (2009) 259 ALR 429, (2009) 83 ALJR 1123, [2009] HCA 39
MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425, [2015] FCA 711

Applicant: AVD15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: BRG 440 of 2015

Judgment of: Judge Riley

Hearing date: 2 June 2016

Date of last submission: 2 June 2016

Delivered at: Melbourne

Delivered on: 1 August 2016

REPRESENTATION

Counsel for the applicant: Anthony Krohn

Solicitors for the applicant: Ambi Associates

Counsel for the first respondent: Liam Brown

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz

ORDERS

1. The application filed on 22 May 2015, amended on 4 September 2015 and further amended on 6 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $7,206.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

BRG 440 of 2015

AVD15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.

The applicant’s claims

1. The applicant claimed that:

   a)he was a Sri Lankan citizen of Tamil ethnicity and Hindu religion;

   b)his life was in danger because of his Tamil race, Hindu religion and political opinion as a supporter of Tamil National Alliance (“TNA”);

   c)he was the nephew of a Tamil member of the Sri Lankan Parliament;

   d)he attended meetings and put up posters and banners for the TNA in the Sri Lankan elections in 2010;

   e)the CID went to the applicant’s shop in August 2012 and asked where he was;

   f)two days later, someone telephoned the applicant and told him his wife would be shot if he did not return;

   g)his wife and son fled;

   h)he would be killed by the government authorities and Karuna supporters;

   i)his property might be expropriated; and

   j)as Tamil people are required to be registered, he may be questioned and harmed by the authorities.

The Tribunal’s reasons

1. For reasons which it gave, the Tribunal did not accept that the applicant:

   a)was related to a Tamil Member of Parliament;

   b)had ever engaged in any political activity;

   c)had any political profile that would make him of any interest to the authorities, the paramilitary or anyone else;

   d)was a supporter of the TNA or would be perceived as such; or

   e)faced a real risk of serious or significant harm by reason of being a Tamil.

Ground 1

1. The first ground of review in the application filed on 22 May 2015, amended on 4 September 2015 and further amended on 6 June 2016 is:

   The Tribunal fell into jurisdictional error in that it failed to make inquiries as required by law, whether by the exercise of its power under section 424 of the Act to get information or otherwise.

   Particulars

   (a)The Tribunal had before it critical pieces of evidence, namely letters by and material about a Member of the Parliament of Sri Lanka (“the MP”) attesting to a family relationship of the MP with the applicant, and the applicant’s support for the Tamil National Alliance (a Tamil political party or group opposed to the government of Sri Lanka), as well as the situation of Tamils in Sri Lanka. This material was therefore potentially critical evidence for the applicant’s credibility and for his claims for protection.

   (b)The MP’s material included:

   v   Letter dated 21.04.2012 attesting to an attempt on the life of another worker for the TNA during the election campaign of 2010, (CB 333)

   v   Letter dated 01.10.2012 attesting to the applicant’s involvement in the TNA and threats against him, Attachment “A” to the applicant’s statement, (CB 476, copy at 575);

   v   Letter dated 14.05.2013, attesting to the family relationship, submitted to the delegate , CB 412;

   v   News report of statements by the MP about violence, abductions and murder suffered by Tamil youth, including rehabilitated Tamils, that is, Tamils previously regarded as having ties to the LTTE but who had undergone a process of “rehabilitation” by the government. (CB 413-415)

   (c)Critical issues on the review included the applicant’s credibility, including the credibility of his claim to have supported and worked for the TNA, and his family relationship with the MP.

   (d)The Applicant’s adviser had specifically submitted “that the Tribunal may clear any doubt as to the authenticity of his evidence by contacting [the MP].” (CB 81)

   (e)The Tribunal did not make inquiries of or take evidence from the MP, and said in its reasons for decision “The Tribunal did not consider it necessary to contact [the MP].” (CB36).

   (f)The Tribunal did not accept the applicant’s critical claims that he had been a supporter of the TNA, involved in the TNA and being related to a TNA MP. (CB 36, [98])

   (g)The Tribunal did not accept that the applicant has ever engaged in any political or activist activity .... It does not accept that he would wish to engage in any activity for the TNA if he were to return to Sri Lanka. (CB 37, [102].)

   (h)The questions whether the applicant was a supporter of the TNA, had been involved in activities for the TNA and was related to the MP were critical questions of fact. It was “an obvious inquiry about a critical fact, the existence of which is easily ascertained” for the Tribunal to have questioned the MP, especially having been requested to do so by the applicant’s advisers. In failing (and indeed refusing) to do so, the Tribunal failed to exercise its power and jurisdiction as required by law.

2. This ground relies on s.424 of the Migration Act 1958 (“the Act”). That section relevantly provided that:

   (1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

3. The applicant argued that, where there is:

   an obvious inquiry about a critical fact, the existence of which is easily ascertained

   then the power to obtain information may be a duty, and the failure to obtain the information may be a jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, (2009) 259 ALR 429, (2009) 83 ALJR 1123, [2009] HCA 39.

4. In the present case, the applicant asked the Tribunal to telephone the applicant’s uncle in Sri Lanka, who was a Member of Parliament. His name was Packiyaselvam Ariyanethiran. The applicant had submitted to the Tribunal a number of letters apparently from that person, namely:

   a)a letter dated 21 April 2012, that said the applicant was well-known to the Member of Parliament, had worked for the TNA in the 2010 election, was a strong supporter of the TNA and had been threatened by unidentified armed groups continuously (CB333);

   b)a letter dated 1 October 2012, that said the applicant had been threatened and searched by an “unknown white van armed group” as he had a deep rooted affiliation with the TNA (CB575); and

   c)a letter dated 14 May 2013, that said the applicant was the writer’s nephew and reiterated that the applicant had a deep rooted affiliation with the TNA and had been threatened and searched by an “unknown white van armed group” (CB412).

5. The applicant also provided to the Tribunal some translations of newspaper articles quoting the Member of Parliament (CB413-5).

6. The Tribunal set out in its reasons for decision what it described as “a number of difficulties” with the applicant’s evidence about his alleged political involvement and relationship with Mr Ariyanethiran. 

7. The Tribunal noted that, in his entry interview, the applicant said that neither he nor any members of his family had been associated with or involved with any political group or organisation. Also, in the entry interview, the applicant said he feared harm from groups such as the army but did not relate those fears to his own support of the TNA or to any of his family members supporting the TNA or to a relative being a TNA Member of Parliament.

8. The Tribunal noted that, in the applicant’s protection visa application, he claimed for the first time that he had been targeted because he was known to be a TNA supporter. The protection visa application had annexed to it a letter from Mr Ariyanethiran, who the applicant described as “my local member of Parliament”.  Neither the applicant’s statement nor Mr Ariyanethiran’s letter referred to any familial relationship between them.

9. The Tribunal noted that, during the applicant’s interview with the delegate, the delegate asked the applicant whether he had ever met Mr Ariyanethiran personally. The applicant replied that he had, because they had worked alongside each other for the TNA. He did not mention at that point any familial relationship between them. 

10. The Tribunal noted that, after the natural justice break in the interview with the delegate, the applicant said for the first time that Mr Ariyanethiran was a relative.  The applicant said that his maternal grandfather and Mr Ariyanethiran’s father were brothers.

11. The Tribunal asked the applicant why he had not mentioned the familial relationship until after the natural justice break in the interview with the delegate. The applicant replied back he did not have an opinion that he had to explain the relationship.

12. The Tribunal also noted that, when asked who he meant when he talked about his uncle, the applicant said, “P Ariyanethiran”. When he was asked the name of the person he referred to as his uncle, the applicant again said, “P Ariyanethiran”. When the Tribunal asked the applicant to state Mr Ariyanethiran’s first name, the applicant then gave a name other than Packiyaselvam.  When the Tribunal sought to confirm that the applicant had given a name other than Packiyaselvam, the applicant referred to one of the letters from Mr Ariyanethiran and then said his first name was Packiyaselvam. 

13. The Tribunal noted that the applicant showed little knowledge of matters to do with the campaign in 2010.   The Tribunal noted some inconsistencies in the applicant’s wife’s evidence.  The Tribunal also noted various other matters that it considered reflected poorly on the credibility of the applicant’s claims.

14. After reviewing the evidence before it, the Tribunal said:

    98.In all the circumstances, the Tribunal does not accept as credible the claims and evidence in relation to the applicant’s connection and involvement with the TNA. The Tribunal does not accept the applicant’s claims about him and other members of his family being supporters of the TNA, about being involved in the TNA and about being related to a TNA Member of Parliament, Mr Ariyanethiran. It does not accept that the applicant engaged in activities for Mr Ariyanethiran such as providing support at election time, giving him information about abuses, driving him to meetings or approaching him for financial assistance. It does not accept that the applicant was involved in political activities in relation to the 2010 parliamentary election or at any other time. It does not accept that he was involved in putting up posters, organising or attending meetings, delivering notices, meeting with village leaders, collecting people together, visiting houses, doing propaganda or any other activities for the TNA. It does not accept that he was in any way involved in activities with Mr Ariyanethiran, including giving him information about abuses, driving him to any meetings or approaching him for financial assistance. The Tribunal does not accept that the applicant is a person who has been a supporter of, or been involved in, the TNA as claimed. It does not accept that other family members are TNA members or supporters. It does not accept that the applicant would have any genuine interest in being involved with the TNA or being involved in any activities in support of the TNA if he were to return to Sri Lanka.

    99.The Tribunal notes that it has been suggested that the Tribunal could telephone witnesses who have provided statements. Submissions have put particular emphasis on contacting Mr Ariyanethiran. The Tribunal has been provided with witness statements from a significant number of witnesses. It may be that Mr Ariyanethiran and other witnesses have been prepared to provide evidence supporting the applicant’s claims. The Tribunal notes that it has been provided with material from the applicant indicating that Mr Ariyanethiran has stated that Tamils are unable to enjoy freedom in Sri Lanka. It may be that this is his view. In spite of the evidence provided in the witness statements, there are numerous difficulties with the evidence which, in the Tribunal’s view, far outweigh the witness evidence. In all the circumstances, the Tribunal did not consider it necessary to contact Mr Ariyanethiran in Sri Lanka or any of the others from whom statements were provided.

15. The applicant argued that a telephone call to Mr Ariyanethiran was “an obvious inquiry about a [number of] critical fact[s], the existence which is easily ascertained”, namely:

    a)was the applicant Mr Ariyanethiran’s nephew;

    b)was the applicant involved in the TNA, and, if so, how?

    c)had the applicant been threatened because of his race or political opinion?

    d)was the situation for Tamils in Sri Lanka such as to pose a real chance of persecution or significant harm for the applicant?

16. The applicant emphasised that, unlike a wife or girlfriend, Mr Ariyanethiran, as a Member of Parliament, was a person with an independent and objectively verifiable status.  The applicant argued that it was a jurisdictional error for the Tribunal to have failed to telephone Mr Ariyanethiran.

17. The first respondent argued that the Tribunal’s refusal to telephone Mr Ariyanethiran did not constitute a jurisdictional error, and relied on Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, (2009) 259 ALR 429, (2009) 83 ALJR 1123, [2009] HCA 39 at [25] and [26] where it was said that:

    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (footnote omitted)

    The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. …

18. The same may be said in the present case.  The applicant argued, however, that the Member of Parliament was not in the same category as the witnesses in SZIAI, because the Member of Parliament’s telephone number could be independently verified by checking on the web.  The applicant implied that the Member of Parliament was an inherently reliable witness, and the Tribunal should have telephoned him and should have accepted what he said.

19. However, a telephone call to a Member of Parliament was not “an obvious inquiry about a critical fact, the existence of which is easily ascertained”.  It would have required an extensive interview enquiring into such things as why the Member of Parliament’s first two letters had not said that the applicant was his nephew and an assessment of the Member of Parliament’s credibility.  It is notoriously difficult to assess credibility in a telephone call. 

20. Given the change in the evidence provided by the Member of Parliament in his letters, I do not consider that his credibility was beyond question.  Consequently, I do not accept that the Tribunal, in refusing to interview the Member of Parliament by telephone, made a jurisdictional error. (In this context, see MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425, [2015] FCA 711 at [78]).

21. The first respondent also argued that the applicant had not asked the Tribunal to telephone the Member of Parliament in accordance with s.426 of the Act. That section provides that:

    (1)In the notice under section 425A, the Tribunal must notify the applicant:

    (a)that he or she is invited to appear before the Tribunal to give evidence; and

    (b)of the effect of subsection (2) of this section.

    (2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

    (3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

22. The first respondent noted that the applicant did not give written notice within seven days of receiving the hearing invitation.  That may be so.  However, in the context of this case, nothing turns on it.

Ground 2

1. The second ground of review in the application filed on 22 May 2015, amended on 4 September 2015 and further amended on 6 June 2016 is:

   The Tribunal fell into jurisdictional error in failing to accord procedural fairness to the applicant by failing to allow him to know an issue or issues on the review, whether under section 425 of the Act or otherwise.

   Particulars

   (a)The applicant’s adviser asked “to be informed as to whether the Tribunal accepts [the MP’s] letters as genuine, as well as whether ... the Tribunal will contact [the MP].” (CB 81).

   (b)The Tribunal did not inform the applicant’s adviser about these questions (set out in particular (e) above), but nevertheless said in its reasons for decision “The Tribunal did not consider it necessary to contact [the MP].” (CB36).

   (c)The Tribunal thereby failed to enable the applicant to know critical issues on the review and thereby failed to allow him to present further evidence or arguments in relation to the issues on the review, whether under section 425 or generally under the law.

1. The applicant argued that the Tribunal was on notice, in effect, that the applicant would have wished to put on further evidence or submissions if the Tribunal had indicated that it did not intend to take evidence from the Member of Parliament.

2. The first respondent submitted that the applicant was on notice from the delegate’s decision that there was a question whether the applicant was related to the Member of Parliament and a question whether the applicant was perceived to be a TNA supporter.  The delegate said in her reasons (at CB392-3) that:

   I do not find the applicant’s claim that he is the nephew of Mr Ariyanethiran credible. … I do not accept that the applicant was politically active with the TNA to an extent that would give him a political profile within the local community.

3. More generally and fundamentally, it is for an applicant to put whatever material he or she wishes before the Tribunal.  Applicants are not entitled to ask the Tribunal to make a preliminary ruling, accepting or rejecting a particular matter, with a view to the applicant putting on more evidence or submissions if the ruling is adverse.

4. The issues in the case were well known to the applicant, both from the delegate’s decision and from a s.424A letter sent by the Tribunal to the applicant on 11 March 2015 (CB132). It was not a failure of procedural fairness for the Tribunal not to advise the applicant whether it intended to telephone the Member of Parliament. This ground is without substance.

Ground 3

1. The third ground of review in the application filed on 22 May 2015, amended on 4 September 2015 and further amended on 6 June  2016 is:

   The Tribunal fell into jurisdictional error in failing correctly to apply or to interpret the law.

   Particulars

   (a)The Tribunal was prepared to accept that returnees to Sri Lanka may expect detention in prison for a short time (CB 62, [179])

   (b)The Tribunal was prepared to accept that those who may be suspected or accused of connections to the LTTE may be at significant risk if returned, including risk of torture. (CB 60-61)

   (c)The Tribunal did “not accept that the applicant has ever engaged in any political or activist activity or that he has any political profile that would make him of any interest to the Sri Lankan authorities .... It does not accept that he is a supporter of the TNA or that he would be perceived as such. It does not accept that he would wish to engage in any activity for the TNA if he were to return to Sri Lanka.” (CB 37, [102]. Emphasis added.)

   (d)On the evidence, and given the failure of the Tribunal to take evidence from the MP, the Tribunal must have had at least some situation of uncertainty about whether the applicant may perhaps have been involved with anti-government politics.

   (e)It was therefore not open to the Tribunal to conclude that the applicant, having claimed involvement with the TNA, and to have been threatened by the authorities or an allied group, and to be related to a TNA MP, would not have a real chance of suffering persecution, or a real risk of suffering significant harm, given the reports about the infliction of torture on Tamils returned to Sri Lanka in the years since the end of the civil war.

   (f)The findings of the Tribunal in this regard demonstrate that it was not in fact applying the real chance or real risk test, despite its statements to the contrary, but was applying a higher bar to the application.

2. The applicant said this ground arose on two bases.  The first basis was that the Tribunal said at paragraph 102 of its reasons for decisions:

   … However, the Tribunal does not accept that the applicant has ever engaged in any political or activist activity or that he has any political profile that would make him of any interest to the Sri Lankan authorities, paramilitaries or anyone else. It does not accept that he is a supporter of the TNA or that he would be perceived as such. It does not accept that he would wish to engage in any activity for the TNA if he were to return to Sri Lanka.

3. The applicant argued that the Tribunal’s use of the word “would” rather than the word “might” indicated that it had applied the wrong test.

4. The second basis the applicant put forward was that there was such a large volume of material before the Tribunal going to the risk the applicant faced that the Tribunal must have applied the wrong test in coming to the conclusion that it did.

5. The first respondent argued that the Tribunal had comprehensively rejected the claims that the applicant had any political connections or had engaged in any significant political activity.  The first respondent argued that the use of the word “would” in paragraph 102 of the Tribunal’s reasons for decision was in the subjunctive mood, and concerned things that might happen in the future.

6. In its ordinary usage, “would” can sometimes be the past tense of “will” and can sometimes be used as a conditional about something that might happen in the future.  I consider that the Tribunal used “would” in the second sense in paragraph 102 of its reasons for decision.  Consequently, I do not accept that the Tribunal applied a higher standard than the real chance test.

7. Moreover, the Tribunal used absolute language, in the form of “ever” and “any” when explaining its conclusion that the applicant did not face a real chance of persecution.  That reinforces the interpretation of the Tribunal’s words to the effect that there was no substance to the applicant’s claimed fear.

8. The second basis for ground 3, regarding the volume of material, is no more than an impermissible attempt at merits review. 

Ground 4

1. The third ground of review in the application filed on 22 May 2015, amended on 4 September 2015 and further amended on 6 June 2016 is:

   The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.

   Particulars

   (a)The Tribunal erred in failing to take into account the process of displacing Tamils from their land since 2012 [CB 299].

   (b)The Second Respondent noted that in the past the Applicant had owned property [CB 64].

   (c)The Applicant submitted specifically that Tamils were having their land taken from them in Sri Lanka [CB 299].

   (d)The Second Respondent did not consider that claim, but instead only looked at the Applicant’s part (sic) history of property ownership [CB 65].

   (e)The Tribunal therefore failed to consider whether the applicant had a well-founded fear of persecution or a real risk of significant harm by future confiscation of his land or property in the process of displacing Tamils from their property.

2. This ground concerns paragraphs 184 to 187 of the Tribunal’s reasons for decision, which are as follows:

   184.The Tribunal has considered submissions about discrimination against Tamils in Sri Lanka. As the Tribunal put to the applicant at the hearing, DFAT stated in its Country Report: Sri Lanka that there were no official laws or policies that discriminated on the basis of race or language. It stated that there was only a low level of discrimination in the implementation of laws and policies. There was no law or policy hindering access to state protection on the basis of religion or race. DFAT stated that it was not aware of any cases over the previous few years where people had been denied access to legal remedies based on race or religion. (DFAT 2015, Country Report: Sri Lanka, 26 February, at 3.5, 5.2 and 5.12). The Tribunal has considered the submissions about the DFAT report, as discussed above.

   185.The Tribunal raised with the applicant at the hearing that it had been claimed that he would face discrimination, that he might have difficulty earning a livelihood, and that he would face discrimination in relation to employment, economic matters and services. However, as the Tribunal has put to the applicant, he has been able to start and run businesses in the past. His evidence indicated that his father was also running a business. He had owned two properties. It may be that the business has ceased and that the business premises were sold after his departure. However, the Tribunal does not accept that this occurred because of the applicant’s involvement in politics or because he had experienced difficulties as claimed. The evidence provided by the applicant indicates that he attended school for 14 years. He has indicated that his wife’s sister’s husband works in security in a petroleum company. When asked about whether he thought he would be denied access to services or employment or would not be able to earn a livelihood in Sri Lanka in the future, the applicant stated that it was because of his involvement with the TNA’s political activity and that, because of his political involvement the Karuna group wanted to kidnap him and kill him. Because of that he could not continue with his business. The Tribunal does not accept the applicant’s claims about his political involvement or about being targeted by the Karuna group. It does not accept that there are any such barriers to his running a business as he has done in the past.

   186.The Tribunal has considered the applicant’s evidence and the submissions made on his behalf. It has considered the submissions in relation to matters such as the marginalisation of Tamils, confiscation of lands, restriction of rights, “Sinhalisation” and discrimination. The Tribunal accepts on the available information that there is some discrimination against Tamils in Sri Lanka. This is acknowledged in the DFAT Country Reports. The Tribunal has had regard also to submissions in relation to matters such as “Sinhalisation”. However, as discussed above, the applicant’s own evidence indicates that he was able to acquire two properties in Sri Lanka. The Tribunal does not accept that the applicant or his family have suffered discrimination in relation to matters such as housing. On the evidence before it, it does not accept that they have been denied a livelihood or denied services. Having regard to all of the information before it, the Tribunal is not satisfied that the applicant would, for reason of his ethnicity, an imputed political opinion, his religion or any other Convention ground, face a real chance of experiencing such discrimination in relation to accommodation or employment or any other matter as to amount to persecution. The Tribunal has had regard to submissions to the effect that the applicant would be denied food, shelter, medical treatment and employment. However, it does not accept on the evidence before it that there is any real chance that he would, for any Convention reason, experience such discrimination in these or any other areas as to amount to persecution. It is not satisfied that there is any real chance that he would suffer significant economic hardship threatening his capacity to subsist or a denial of capacity to earn a livelihood of any kind threatening his capacity to subsist. While the Tribunal is conscious that these and the other instances of serious harm referred to in s.91R(2) do not form an exhaustive list, the Tribunal nevertheless is not satisfied that the applicant faces such discrimination as to amount to Convention-related persecution.

   187.The Tribunal noted that the post-hearing submission of 27 March 2015 stated that the applicant “takes this opportunity to submit that he was displaced from his home in 2008 for approximately 3 months”. At hearing, the Tribunal had asked the applicant about where he lived. His evidence was that he had lived in North Eruvil from 2005 to 2010 and at a different address in Paddirupu from 2010 to July 2012. In any event, as the Tribunal has put to the applicant, the war finished in 2009. He was able to acquire two properties in Sri Lanka. Even if the applicant had experienced a short period of displacement in 2008, the Tribunal does not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future.

3. The applicant argued that the Tribunal did not grapple with the claim that the applicant faced serious harm by having his land expropriated.  The first respondent said that the Tribunal dealt with the claim by making findings at a greater level of generality.

4. The Tribunal noted at paragraph 42 of its reasons for decision that there were submissions about numerous, specific ways in which Tamils had suffered in Sri Lanka, including by having their lands expropriated.  The applicant did not claim that he or any one close to him had had land expropriated or had received a threat that land would be expropriated.

5. The Tribunal conducted an extensive review of the country information and concluded at paragraph 164 of its reasons for decision that:

   Having carefully considered all of the country information, the Tribunal does not accept that Sri Lankans who are of Tamil ethnicity face a real chance of serious harm simply because of their ethnicity.

6. It is well established that the Tribunal is not required to “grapple” with a claim if its deals with it at a greater level of generality.  That is what the Tribunal did in paragraph 164 of its reasons for decision.

7. Moreover, it is not apparent that expropriation of land constitutes serious harm.  As set out in the quotation above, in paragraph 186 of its reasons for decision, the Tribunal, in assessing matters such as the confiscation of lands, found that the applicant did not face a real chance of discrimination such as to amount to persecution for any Convention reason.  That finding was open to the Tribunal.

8. Also, as shown in paragraph 185 of the Tribunal’s reasons for decision, when asked about whether he would not be able to earn a livelihood in Sri Lanka, the applicant said that it was because of his involvement with the TNA, and the Karuna group wanted to kill him.  Clearly, the Tribunal rejected the applicant’s claim about his involvement in political activity.

9. This ground is not made out.

Ground 5

1. The third ground of review in the application filed on 22 May 2015, amended on 4 September 2015 and further amended on 6 June 2016 is:

   The Tribunal fell into jurisdictional error in that it was unreasonable in its decision and reasons.

   Particulars

   The applicant refers to and repeats the particulars to the other Grounds of this application.

2. In this ground, the applicant simply relied on his other grounds. 

3. The court book in this case runs to 650 pages.  There were numerous written submissions to the Tribunal advanced by the applicant, who had the benefit of legal assistance.  The Tribunal’s reasons for decision in this case run to 65 pages and 210 paragraphs.  The Tribunal’s reasons for decision are exhaustive. 

4. It seems to me that the Tribunal in this case has carefully and thoroughly considered the case put to it.  The Tribunal did not make any of the errors alleged.  I see no other basis on which it could properly said that the Tribunal’s decision was not legally reasonable.  This ground is not made out. 

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     1 August 2016