AXM16 v Minister for Immigration
[2017] FCCA 2561
•5 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXM16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2561 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for various reasons – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Tribunal overlooked integers of the applicant’s claims or erred in its treatment of relevant material considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 414 |
| Cases cited: Htun v Minister for Immigration [2001] FCA 1802 Rajaratnam v Minister for Immigration [2000] FCA 1111 |
| Applicant: | AXM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 937 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu of Hodges Legal |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application as amended in Court on 1 November 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 937 of 2016
| AXM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 March 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who arrived in Australia in June 2012. On 6 November 2012 he applied for a protection visa. He claimed to fear harm upon return to Sri Lanka due to his Tamil ethnicity, an actual or imputed anti-government political opinion, and as a member of a particular social group of young Tamil men who have escaped to and claimed asylum in a Western country. He claimed to fear harm in particular from the Criminal Investigation Department (CID) and a paramilitary group (the Pillaiyan group), who harassed and threatened him between 2010 and July 2011. He further claimed that on two occasions in 2006 he was interrogated and videotaped by the authorities.
The applicant’s claims include the following:[1]
[1] Court Book (CB) 48-51
a)in January 2006, the applicant was at a beach party with friends when the Army arrived and surrounded people on the beach. Five teenage school children were shot and killed;
b)the Army were photographing people in the protests and the funeral after this event. From time to time, the applicant’s village was surrounded and young people were taken for questioning. He was taken two times for this type of questioning over four or five hours. People were beaten if they did not answer correctly;
c)that incident made the applicant want to leave the country, and in January 2007 the applicant travelled to Singapore to escape Sri Lanka;
d)on 16 August 2008, the applicant returned to Sri Lanka. He stayed with his aunt in Colombo until January 2009, after which he returned to Batticaloa. He got a job in April 2009 and married in October 2009;
e)in January 2010, the CID picked him up on the way back home. He was on a motor bike and they were in a four-wheel drive jeep. They asked him questions about himself. There was a Tamil man in the truck who said that they were searching people who had been in rehabilitation. They wanted information about the LTTE;
f)afterwards, a Tamil man called Pulliam, who is a member of the Pillaiyan group, contacted him over the telephone. He threatened the applicant and accused him of being an LTTE supporter. He told the applicant that he would be taken in for questioning. The reason for the harassment was partly because he had spent time out of Sri Lanka and “they” might have thought that he is a wealthy person who could give “them” money;
g)the applicant had been hassled twice in October 2010 and February 2011. The CID visited his house and threatened his wife, grandmother and sister. The applicant was never at home at those times as he was on “fieldwork” outside Batticaloa. After that a white van was waiting in front of his house on two separate occasions. There was no numberplate on the van. The family decided to close all the doors and stay inside;
h)on 18 August 2011, the applicant complained to the Human Rights Commission in Batticaloa after a stone was thrown from the white van and broke a window in his house. The complaint to the Human Rights Commission was made after he sent his wife to her mother’s place in Trincomalee because he was worried for them both;
i)around July 2011, a white van followed the applicant when he was going to work on his motorbike. Once he reached his office and went inside, the white van left. He fears that they might have been seeking an opportunity to abduct him;
j)after that, the applicant sent his wife and grandmother away. He also left his house and rented it out in November 2011. He went to Kallady, about five kilometres from Batticaloa, and rented a room from people he knew. He did not go to work during this period because he was too afraid to travel there;
k)the applicant was taken secretly from Batticaloa to Colombo and then Negombo. He then left Sri Lanka; and
l)when reporting to the Army, the applicant was beaten up and they would still ask about the LTTE weapons.
In summary, the applicant claims to fear harm or persecution from the Sri Lankan authorities if he were to return to Sri Lanka, for the following reasons:
a)he is of Tamil ethnicity;
b)his imputed political opinion and involvement with the LTTE; and
c)he departed Sri Lanka illegally.
The applicant applied for asylum in Australia.
On 4 July 2013 the delegate refused to grant the applicant a visa.[2] The applicant commenced a review in the Tribunal, and was invited to appear at a hearing scheduled for 27 November 2014.[3] The applicant attended the hearing, accompanied by his representative.[4] On 20 November 2015 the Tribunal advised the applicant that the Tribunal member who was conducting the review was no longer available to do so, and that a new Tribunal member would finish the review.[5] The applicant was invited to a further hearing scheduled for 3 February 2016,[6] which he attended with his (new) representative.[7] On 17 February 2016 the applicant’s representative sent a post-hearing submission to the Tribunal.[8]
[2] CB 118-134
[3] CB 150
[4] CB 156
[5] CB 163
[6] CB 166
[7] CB 176
[8] CB 182-205
Decision of the Tribunal
The Tribunal affirmed the decision under review.[9]
[9] CB 209-224
The Tribunal first considered the applicant’s claims in respect of prior treatment he had allegedly received from the Army, the CID and the Pillaiyan group. The Tribunal had significant concerns in relation to the credibility of the applicant’s claims.[10] First, the Tribunal expressed difficulty accepting the applicant’s claims to have been targeted by the CID in 2010 and 2011.[11] The Tribunal noted the applicant’s evidence that he was not affiliated with any political party or organisation and was not engaged in political activities.[12] It did not find plausible the applicant’s explanation that the CID and paramilitary groups had wanted to find youngsters to accuse them of being with the LTTE.[13]
[10] CB 217 at [46]
[11] CB 214-215 at [39]-[40]
[12] CB 215 at [40]
[13] CB 215 at [41]
The Tribunal considered evidence from the applicant at the second hearing that he may have been the target of authorities due to an incident in 2006 when he witnessed the killing of school children on a beach and was later interrogated and videotaped.[14] The Tribunal accepted that the applicant was questioned on two occasions in relation to this incident but referred to the applicant’s own admission to the Minister’s Department and to the Tribunal that he was not singled out and that many people in his village were similarly questioned.[15] The applicant did not report any incident thereafter, until the events in 2010. The Tribunal found that if the applicant had been of interest to the authorities because of the 2006 events, the authorities would have acted on it earlier than 2010.[16]
[14] CB 215-216 at [42]
[15] CB 216
[16] CB 216 at [42]
The Tribunal also rejected the applicant’s claim to have been the subject of extortion from the Pillaiyan group as a perceived wealthy person because no consequences followed when the applicant “resolutely refused” to give money.[17]
[17] CB 216 at [43]
The Tribunal placed no weight on a document said to have been issued by the Human Rights Commission of Sri Lanka on the basis that it did not reveal any information supporting the applicant’s claims that he will be seen as “anti-government”.[18]
[18] CB 216-217 at [45]
In relation to the applicant’s claims for protection based upon his Tamil ethnicity, the Tribunal found that whilst there was a level of societal discrimination faced by Tamils in Sri Lanka, there was no government-sanctioned discrimination in the implementation of laws and policies against Tamils. The Tribunal did not find that the applicant had a profile in Sri Lanka that would place him at risk because of his Tamil ethnicity.[19]
[19] CB 217-218 at [48]-[49]
In relation to the applicant’s claims for protection arising from his illegal departure from Sri Lanka, the Tribunal accepted the applicant had departed Sri Lanka illegally but that sources suggested that the principal focus of authorities was upon returnees who were considered to be LTTE members, or involved with the LTTE.[20] The Tribunal referred to country information, in particular from the Department of Foreign Affairs and Trade, as to the entry procedures that returnees face in Sri Lanka.[21] The Tribunal was not satisfied that the combination of the applicant’s ethnicity and his living overseas would see him imputed with having links to the LTTE or expose him to a greater level of risk.[22]
[20] CB 218 at [51]
[21] CB 219-220 at [53]-[56]
[22] CB 220 at [57]
The Tribunal accepted the applicant would be subject to the application of Sri Lankan laws for having departed illegally, but that the most likely penalty for leaving illegally would be a fine, unless the applicant was suspected of having organised or facilitated a people-smuggling venture.[23] The Tribunal found that information available to it indicated that whilst prison sentences are available for those charged with offences under Sri Lankan immigration laws, such punishments were seldom enforced. Indeed, information suggested that no returnee who was merely a passenger on a people-smuggling venture had been given a custodial sentence for illegal departure. The Tribunal was not satisfied that the applicant would be detained for a longer period of time for any reason.[24]
[23] CB 220-221 at [58]-[59]
[24] CB 221 at [61]
The Tribunal rejected the applicant’s claims for refugee protection, and for similar reasons rejected his claims for complementary protection. It focussed in particular on the treatment which the applicant would receive as a person who had departed illegally in considering whether the applicant had any protection entitlements under s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[25]
[25] CB 223 at [68]-[70]
The present proceedings
These proceedings began with a show cause application filed on 19 April 2016. The applicant filed an amended application on 16 October 2017 which contains four grounds:
Ground 1
The Tribunal committed jurisdictional error in failing to properly consider an integer of the applicant's claim.
PARTICULARS
a) The Tribunal at paragraph 7 noted the applicant's claims that he was involved in an incident in 2006 on beach when 5 teenagers were shot and killed by the army'
b) The Tribunal accepted that persons who attended the funeral(s) and protests following the incident were [photographed] and questioned.
c) The Tribunal noted at paragraph 11 that the applicant made a complaint to the Human Rights Commission.
d) The Tribunal did not explore with the applicant adequately or at all the basis of his complaint to the Human Rights Commission.
e) The Tribunal failed to consider that upon return to Sri Lanka, the applicant would be a Tamil male, who was a witness to a human rights atrocity committed by the army and would be in a position to give evidence against the perpetrators at any time in the was a person who may well have been photographed or otherwise identified as a witness and is likely to come to harm as a result of being a witness to that atrocity,
f) The Tribunal did not consider the possible consequences to the applicant if he speaks of the atrocity at any time in the future.
g) The Tribunal did not consider the possible consequences of the fact that the applicant's photo is likely to be on files in Sri Lanka.
h) The mere fact that no harm was suffered in the years to 2009 when the war with the Tamils ended or thereafter does not sufficiently remove any “real chance” that harm might occur in the future.
Ground 2
The Tribunal erred as the adverse inference was founded on “hypothetical scenarios” which were determinative factors in the mind of the Tribunal with regard to the granted for illegal departure. The hypothetical scenarios and the likely consequence to the Applicant were not raised clearly with the Applicant.
PARTICULARS
(i) At [60] the Tribunal raises two hypothetical scenarios, and they are as follows
a. The likely consequence to the Applicant if he “pleaded guilty” and
b. The likely consequence to the Applicant if he pleaded “not guilty”.
(ii) On the basis of the Tribunal's reasoning found at [60] it appears that if the Applicant was to plead guilty [for the illegally departing Sri Lanka] he will not be remanded as the Tribunal states such persons who plead guilty will be “fined and are then free to go”.
(iii) On the basis of [68] it is clear that the Tribunal accepted the 2nd hypothetical scenario (i.e. that the Applicant would not plead guilty). At [68] the Tribunal state as follows,
... The Tribunal accepts that the applicant would likely face arrest on charges of illegal departure. Consequently he could be placed in remand for a relatively brief period while awaiting a bail hearing and would later be fined if found guilty.
(iv) A fair reading of paragraphs [60] and [68] seems to suggest that the Tribunal failed to raise with the Applicant its reason/s or on what basis that the Tribunal believed the applicant would plead not guilty for an offence which is quite blatant and obvious.
(v) It also appears that the Tribunal failed to raise with the Applicant of the likelihood of the Applicant's family member acting as guarantor for bail to be granted.
(vi) At [60] further Tribunal is drawing an inference on assumptions, as it states therein,
… if bailed there are rarely any conditions and if there are, they are imposed on a discretionary basis.
The possibility that “conditions” may be attached when bail is granted was not raised with the Applicant.
(vii) At [60] the Tribunal provides examples of the “conditions” that may be attached when bail is granted.
…An accused will only need to return to court when the case against them is being heard, or if summoned as a witness in a case against the organiser/facilitator of a boat venture
The Tribunal raised the possibility that the Applicant could be summoned as a witness against a people smuggler. The consequence of such an act if the Applicant is required to undertake is likely to have serious consequences (i.e. from a [Complementary] Protection perspective) and clearly this was not raised. People smuggling is a serious offence in Sri Lanka, the consequence to an organiser/facilitator could be long term imprisonment, hence if the Tribunal was of the view that the Applicant could be summoned as a witness this ought to have been raised by the Tribunal.
(viii)While the likelihood that the Applicant would require “money to make bail” was raised by the Tribunal the Tribunal failed to raise / consider that if the Applicant was able to pay a fine. The Tribunal was of the view that the Applicant would plead not guilty, however did accept at [68] “would later be fined if found guilty”. If the Applicant pleaded not guilty and was subsequently found guilty, the fine the Applicant would need to pay could be more, even if this was not the case the ability of the Applicant to pay a fine presumably greater than money required to be granted bail was not raised by the Tribunal.
Ground 3
The Tribunal failed to deal with an integer of a claim made out on the facts.
PARTICULARS
a) The applicant claimed in his statement of claims that a member of the Pillaiyan group whose name is “Pulliam” had “threatened” him “as being an LTTE supporter and said I would be taken for questioning” [CB 49, 10].
b) The Tribunal did not accept that the applicant was threatened or that or that demands were made for him to make payments to the CID and the Pillaiyan group or that the SLA, the CID or the Pillaiyan group have any adverse interest in the applicant [CB 217, 46].
c) The Tribunal rejected the applicant's claims that he was a victim of extortion in the past and that it was not satisfied that there is a real chance that the applicant would be subjected to extortion [CB 217, 47].
d) The Tribunal appears to have dealt with the threat of harm emanating from the Pillaiyan group as a whole and in doing so, failed to deal with an essential integer of the applicant’s claims that is he was “threatened” by a particular individual who was a member of the Pillaiyan group.
e)The Tribunal when considering “threats” and or “extortion demands” directed at the applicant in the past, failed to consider the fact that “Pulliam” had “threatened” the applicant “as being an LTTE supporter ...”, thereby implying the applicant would be falsely accused of LTTE links.
f) The Tribunal failed to also assess if the applicant faces a real chance of serious harm that emanates from Pulliam who is a member of the Pillaiyan group when assessing the claims against the refugee criterion assessment.
g) The Tribunal failed to also assess if the applicant faces a real risk of significant harm that emanates from Pulliam who is a member of the Pillaiyan group when assessing the claims against the [complementary] protection criterion.
Ground 4
The Tribunal misdirected itself and failed to consider that “extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct” See: Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111
PARTICULARS
a) At [CB 215, 40] the Tribunal states “The Tribunal has difficulty accepting the applicant's claims. The applicant was unable to provide any persuasive reason as to why the CID would target him in this manner”.
b) The Tribunal then went onto to state that “Those at risk appear to be persons who have a certain level of LTTE links” [CB 215, 40].
c) The Tribunal then asked the applicant “why the CID had spent so much time and resources to monitor him over a long period of time ...” [CB 215, 41]. The applicant's response to this question and the applicant's subsequent responses [CB 215, 42] appears to have been used by the Tribunal to infer that there were “significant concerns in relation to the credibility of the applicant's claims” [CB 217, 46].
d) The applicant in his statement of claims stated [CB 49, 10], “The reason for this harassment is partly because I have been out of Sri Lanka and they maybe think I am a wealthy person I believe they want money”
e) The delegate accepted that “someone from Pillaiyan group may have demanded money” [CB 124].
f) In Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111, Judges FINN AND DOWSETT stated at paragraph 48,
In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: “Was the perpetrator's interest in the extorted personal or was it Convention related?” In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator's part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.
g) The Tribunal failed to consider that extortion/extorsive activity has a dual character that is motivated by personal interest of the perpetrator or Convention related.
h) The Tribunal's reasoning failed to consider that extortion/extorsive activity may be motivated by personal interest of the perpetrator [CB 216, 43- 44].
(applicant’s emphasis retained and errors in original)
In written submissions filed on 21 October 2017, the applicant stated that Grounds 1 and 2 in the amended application were not pressed, however, the applicant sought to introduce a new ground (Ground 5) in the following terms:
Ground 5
The Tribunal committed jurisdictional error when giving no weight to an important document.
PARTICULARS
a) The Tribunal accepted that the “applicant might have lodged a complaint with the Human Rights Commission” [CB 216, 45].
b)The Tribunal was concerned that the document issued by the Human Rights Commission of Sri Lanka “merely states ‘threat [the applicant]’ ”.
c) The Tribunal then stated that it was unable to place any weight on the document “in supporting the claims he has made that he will be seen as ‘an anti-government’ ”.
d) It was not open for the Tribunal to make a finding that the applicant had tendered in the document issued by the Human Rights Commission of Sri Lanka (which the Tribunal considered to be a complaint lodged by the applicant) in supporting the claims he has made that he will be seen as ‘an anti-government’ as the applicant claimed that he was also a victim of extortion / extorsive activity which involved threats [CB 214, 39].
e) The Tribunal did not raise concerns about the genuineness of the document, rather it gave no weight as there was limited information in the document.
f) The Tribunal failed to consider if the document issued by the Human Rights Commission of Sri Lanka supported the claims relating to extortion / extorsive activity which involved threats.
g) Should the Tribunal have considered f. above the Tribunal would not have been able to give no weight to the document issued by the Human Rights Commission of Sri Lanka, and this would have affected the Tribunal’s finding at [CB 217, 47], which refers to a finding made by the Tribunal which states “The Tribunal has rejected the applicant’s claims that he was a victim of extortion in the past …”
(applicant’s emphasis retained)
The Minister did not oppose leave being granted for the applicant to rely upon the grounds as amended. I granted that leave at the trial of the matter on 1 November 2017.
The only evidence I have before me is the court book filed on 13 May 2016.
Consideration
Ground 3
The applicant submits that the Tribunal failed in its assessment to review the decision under s.414 of the Migration Act as it failed to consider an essential integer of the applicant claims that was clearly made out on the facts.[26]
[26] See Htun v Minister for Immigration [2001] FCA 1802 at [42]
It is clear that the applicant claimed that a particular individual whose name is “Pulliam”, a member of a Tamil paramilitary group, had threatened him “as being an LTTE supporter and said [he] would be taken in for questioning”.[27] The threats were made over the phone.
[27] CB 49 at [10]
The applicant contends that, though the Tribunal did not accept that the applicant was “continuously threatened or that demands were made for him to make payments to the CID and the Pillaiyan group”,[28] the Tribunal was obliged to assess the claim concerning the threats made by a particular member of the Tamil paramilitary group when assessing future harm under the refugee assessment criterion and the complementary protection criterion. This assessment ought to have been done as an “independent assessment”, as the threats were made by an individual who had the capacity to carry out the threats due to his membership in a paramilitary group.
[28] CB 217 at [46]
The applicant concedes that the threats directed at him by the particular member of the Tamil paramilitary group[29] were directed on behalf of the Pillaiyan group, but nevertheless asserts that a fair reading of his statement[30] indicates that this claim should have been “assessed separately”.
[29] CB 214 at [39]
[30] CB 49 at [10]
Further, the applicant submits that the real chance or real risk of future harm that he would face that emanates from “Pulliam” could not be said to be subsumed in the Tribunal’s more general findings at [44][31] and [46]–[47][32].
[31] CB 216
[32] CB 217
At [43][33] the Tribunal stated: “[i]t is a notorious fact that the CID and the Pillaiyan group have the resources and the capacity to act with impunity and cruelty towards intended targets.” Threats made by an individual who was part of the Pillaiyan group therefore are said to have required an independent assessment.
[33] CB 216
In Rajaratnam v Minister for Immigration,[34] Finn and Dowsett JJ stated at [48]:
… the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator's part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character. (applicant’s emphasis retained)
[34] [2000] FCA 1111
The Tribunal is said to have failed to consider if the perpetrator (being Pulliam) was motivated by personal interest when he made the threats, and if the applicant would face significant harm upon return, an assessment that ought to have been made against the complementary protection criterion.
The Minister resists this ground on the following basis.
The nub of the ground is that the Tribunal overlooked aspects of the applicant’s claim relating to extortion attempts he had faced in the past from a member of the Pillaiyan group, and in particular that the Tribunal failed to consider the claim that the threat to the applicant was made by a named individual, “Pulliam”. However, the Minister submits that the Tribunal did consider the claim, as it was advanced by the applicant that “he was threatened by Pulliam who asked him for money in exchange for protection”.[35] The Tribunal considered, and rejected, the claim.[36]
[35] CB 216 at [43]
[36] CB 217 at [46]-[47]
I agree. The Tribunal plainly considered the possible motivations for the alleged extortion attempts; those being the applicant’s Tamil ethnicity and imputed association with the LTTE and a simple financial motive based on the assertion that the applicant was perceived as wealthy. The Tribunal considered the role of “Pulliam” in the extortion attempts. In the end, it did not matter whether Pulliam was making threats in a personal capacity or on behalf of the group he represented. The Tribunal rejected the claim of the extortion demands occurring at all.
Ground 4
At [39][37] the Tribunal referred to the applicant’s claim that the extorsive activity began after “he was stopped by the CID and questioned” and that the CID began targeting him subsequently.
[37] CB 214
The Tribunal stated at [40][38] that it had “difficulty accepting the applicant’s claims” as the “applicant was unable to provide any persuasive reason as to why the CID would target him in this manner”.
[38] CB 215
The applicant submits that he did provide a persuasive reason as to why the CID would target him in this manner, which was made out on the facts, namely that the motivation to target him had a dual character, one being extortion and the other being Refugees Convention related. The Tribunal is said to have failed to consider this.
The applicant submits that the Tribunal at [40][39] had difficulty accepting the applicant’s claims, as it failed to consider that the perpetrators’ motivation to target the applicant had a dual character.
[39] CB 215
This ground is related to the third ground. I reject it for essentially the same reasons as I rejected Ground 3, consistently with the Minister’s submissions in relation to both grounds.
The Tribunal’s reference at [40] to having difficulty accepting the applicant’s claims was a reference to the claims that the CID had threatened him and his family members. The Tribunal was not here referring to the extortion attempt. The extortion attempt claim was dealt with separately at [43] and [46]-[47]. Further, the Tribunal did not accept as a fact that the applicant was the subject of an extortion attempt. It was therefore unnecessary for it to address the reasons the alleged extorter sought to extract money from the applicant.
Ground 5
I prefer the Minister’s submissions in relation to this ground.
The applicant asserts that the Tribunal erred in the manner in which it gave no weight to a document submitted by him, being the Human Rights Commission complaint document. The Tribunal gave reasons for giving the document no weight.[40] The applicant concedes[41] that the document “could in no way have assisted [him] in supporting the claim relating to being perceived to be LTTE or seen as ‘an anti-government’”. However, the applicant submits that it is “reasonable to infer” that the document was lodged by the applicant in relation to threats made by Pulliam, the Pillaiyan group and the CID. In the particulars to Ground 5, the applicant suggests that the Tribunal needed to have considered whether the document supported the applicant’s claim to have been the subject of extortion.
[40] CB 217-218 [45]
[41] applicant’s submissions at [18.4]
I disagree. The document in question appears at CB 94-95. For whatever purpose it was submitted to the Minister’s Department, it plainly gives no detail about the nature of the “threat” to which it refers, save that the threat pre-dated 18 August 2011. The Tribunal referred to the document at [11][42] where it states that the applicant “complained to the Human Rights Commission in Batticaloa after a stone was thrown from the white van and broke a window in his house”. This reference was taken from [11] of the applicant’s statement attached to his protection visa application.[43] The Tribunal’s reference to the document not supporting the applicant’s claim to be “anti-government” must therefore be read in the context of how the applicant advanced his claims. There is no connection drawn, in the applicant’s statement, to the Human Rights Commission complaint having been made following, and as a direct result of, an extortion attempt.
[42] CB 211
[43] CB 49
It being a matter for the Tribunal to consider and weigh evidence, including documentary evidence, before it, there is no basis upon which the Tribunal can be said to have erred in its consideration of the document. It is not for the Court to draw its own inferences about what the document is, or might be. That was a task for the Tribunal, which it performed. The Tribunal’s findings were open to it. No error is identified.
In my opinion, the applicant is seeking to make more of the document from the Human Rights Commission than he did before the Tribunal. While the document was only put before the Tribunal in support of the applicant’s claims in relation to the stone throwing incident, he now asserts a greater significance in the document, as well as corroborating his other claims of threats of extortion. The Court cannot entertain an ex post facto development of protection claims that were not put to the Tribunal. Neither was the Tribunal under any obligation to make the applicant’s case for him.
I reject this ground.
Conclusion
The applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 5 December 2017
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