AYG15 v Minister for Immigration
[2016] FCCA 1697
•8 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYG15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1697 |
| Catchwords: MIGRATION – Application for Protection (Class XA) visa – whether tribunal took into account irrelevant considerations – whether tribunal’s fact finding was illogical or irrational – whether no evidence to support tribunal’s findings – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), s.46A |
| Cases cited: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 61 |
| Applicant: | AYG15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 492 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 December 2015 |
| Date of Last Submission: | 9 December 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 8 July 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Ford |
| Solicitors for the Applicant: | Hugh Ford Solicitor |
| Solicitor for the First Respondent: | Ms Tattersall |
| Solicitors for the First Respondent: | Sparke Helmore |
The second respondent entered a submitting appearance.
ORDERS
The application filed on 4 June, 2015 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 492 OF 2015
| AYG15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the second respondent made on 22 May, 2015 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection (Class XA) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance save as to costs.
The applicant’s grounds of review are stated in his Application for Review in very general terms. There are no particulars. The application was initially listed for hearing on 22 October, 2015 but on 21 October, 2015 the applicant requested an adjournment of the hearing on the basis that a legal representative had recently been appointed to act on his behalf. An adjournment was granted and the initial hearing date adjourned.
Notwithstanding the adjournment, no amended application was filed which bought any greater precision to the case to be advanced by the applicant. The applicant’s legal representative has filed an outline of submission and the adjourned hearing was conducted by reference to the matters raised in that outline.
For the reasons that follow, I have come to the conclusion that the application does not reveal that the tribunal’s decision is affected by jurisdictional error and must be dismissed. At best, the applicant’s complaints amount to an impermissible attempt to review the tribunal’s determination of the merits of the applicant’s claims
Background
The applicant is a citizen of Sri Lanka. He arrived in Australia in May, 2012 as an irregular maritime arrival. On 19 September, 2012 the first respondent determined to permit the applicant to make application for a protection visa pursuant to s.46A of the Migration Act 1958. The applicant lodged an application for a protection visa on that day.
In his application, the applicant claimed to fear harm as a result of:
a)his Tamil ethnicity;
b)his imputed political opinion in support of the LTTE;
c)his membership of a particular social group of failed asylum seekers; and
d)his illegal departure.
The applicant claimed that he had previously suffered harm in Sri Lanka. He claimed that in 2006 he was assaulted by a group of seven or eight individuals that he suspected were Sri Lankan Army officers as they considered the applicant was working for the Liberation Tigers of Tamil Eelam.
The applicant claimed that in December, 2010 he and his brother, Nilan, were forced from their home into a white van by a group of nine or ten armed men wearing black. The applicant claimed that he and Nilan were driven for approximately 45 minutes and were then assaulted and interrogated about the whereabouts of their other brother, Sudath. White vans had also visited the home of Sudath although he was in hiding.
The applicant claimed that in 2011 he had been visited by white vans approximately three or four times and since arriving in Australia white vans had gone to his house in search of himself and his two brothers and that his wife had been threatened with a knife by a man stating that the property did not belong to her.
On 24 July, 2013 the delegate refused the visa. The delegate accepted the applicant’s account of the 2006 incident but did not accept that Sudath had been suspected of involvement with the LTTE or that the applicant was abducted by white vans or ever had problems with white vans in the past.
The applicant applied for review of the delegate’s decision by a refugee review tribunal. The tribunal member invited him to attend before the tribunal to present evidence and argument in support of his claims. The tribunal hearing took place on 4 March, 2015. The applicant had the assistance of a Tamil interpreter at the hearing.
On 22 May, 2015 the tribunal affirmed the delegate’s decision.
The tribunal’s decision
The tribunal accepted that in 2006 the SLA was concerned about LTTE activities in Manner and accepted the applicant was intercepted, threatened, beaten and questioned in 2006 as claimed. However it did not accept there was a real chance that this incident would lead the authorities to regard the applicant as an LTTE supporter or imputed LTTE supporter, given that at the time the SLA did not find out the applicant’s name or ask for identification, the incident occurred some nine years ago and the fact the applicant was released suggested the SLA was satisfied he was not an LTTE supporter.
However, the tribunal was not satisfied that Sudath was working in an LTTE controlled area between 2002-2005 or that Sudath was regarded as a supporter of the LTTE. In reaching that finding the tribunal relied on country information and what it considered to be the applicant’s “very vague” responses. Accordingly, the tribunal also did not accept that there was no real chance that the fact that the applicant’s brother worked in Jaffna between 2002 and 2006 would lead the authorities to regard the applicant as a supporter of the LTTE or impute him with pro-LTTE sympathies on return.
The tribunal further did not accept that the applicant had been abducted by people in a white van, that a white van had come looking for him, that he was approached at work or that his family were suspected of supporting the LTTE. The tribunal found the applicant’s evidence in that regard to be vague, lacking in detail, implausible, inconsistent and confused.
Given its findings that the applicant had not been suspected of supporting the LTTE, it did not accept that as a result of being a Tamil the applicant would be suspected of supporting the LTTE. It further did not accept that the applicant’s wife’s parents snubbing and refusing to visit them, or being gossiped about by Sinhalese neighbours, amounted to serious or significant harm.
The tribunal accepted that the applicant’s wife had difficulties with a neighbour and that she was subsequently attacked by someone and was hospitalised, but did not accept that the attack related to the applicant, the fact that the applicant was Tamil or any other profile the applicant has, but rather because she was a woman alone. It therefore did not accept that the actions of criminals against his wife would lead to a real chance that the applicant would be seriously harmed in the reasonably foreseeable future.
In relation to the applicant’s claims as a failed asylum seeker and his illegal departure, the tribunal did not accept that the applicant fell within one of the groups that the country information regarded as being at risk on return. The tribunal accepted that the applicant would be questioned, may be charged and bailed relatively quickly for his illegal departure. It found that even if the applicant was to face prosecution for his illegal departure, such prosecution would not amount to persecution within the meaning of the Convention as it would amount to the enforcement of a law of general application.
The tribunal accepted that the applicant may be remanded for one to several days pending bail and that prison conditions in Sri Lanka are poor, overcrowded and the applicant may suffer some discomfort. It did not however accept that any pain or suffering caused to the applicant by the conditions in prison would be intentionally inflicted or intended to cause humiliation and accordingly, it did not consider that the short period on remand would give rise to a real risk of significant harm.
The grounds of review
In his Application for Review filed on 4 June, 2015 the applicant specifies the following grounds of review:
1. That the decision of the second respondent, the Refugee Review tribunal, was affected by legal error.
2. Did not consider relevant information.
In the written submissions filed for the applicant by his legal representative, the applicant appears to take issues with the tribunal’s decision in the following ways:
a)the tribunal took into account irrelevant considerations;
b)there was no evidence to support some of the findings made by the tribunal; and
c)the tribunal’s decision on some matters were unreasonable, illogical or irrational.
The applicant’s written submissions address those matters by reference to individual paragraphs of the tribunal’s decision. That approach was followed consistently in oral submissions. I will address the issues as they relate to each of the suggested jurisdictional errors.
Relevant and irrelevant considerations
As Judge Lloyd-Jones observed in SZTBJ v Minister for Immigration [2015] FCCA 580:
[94] In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ held that a tribunal would fall into jurisdiction error by “ignoring relevant material or relying on irrelevant material in a way that affects the exercise of the power…”. This was a restatement of the principle expounded by Mason J in Peko-Wallsend Ltd (supra) at 40 that:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision… A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision…
[95] For a consideration to be irrelevant, it needs to be established that the decision-maker is forbidden or prohibited by the subject matter, scope or purpose of the relevant legislation from taking the consideration into account in the exercise of a discretionary power. The concept is, in effect, the inverse of the concept of failing to take into account a relevant consideration. The former is prohibited while the latter is mandated: Minister Administering The Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71 per Hodgson JA at [80]. In Ballantyne (supra), Basten JA observed at [113]:
113. In the language of judicial review, “relevant considerations” are mandatory considerations in the sense that any failure to take them into account, in circumstances where they are engaged, will be an error in point of law. A similar principle is reflected in the concept of “irrelevant considerations”. These are factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error. These two categories do not, however, constitute an exclusive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated or precluded…
His Honour’s decision was upheld on appeal, although the above paragraphs were not subject to consideration. I accept them as an accurate statement of the principles to be applied.
The applicant argues that paragraph 22 of the tribunal’s decision reveals that the tribunal has not taken into account a relevant matter, namely that the control of many parts of Sri Lanka would change regularly. Paragraph 22 of the tribunal’s reasons is in the following terms:
2006 Incident
22.The applicant told the tribunal he worked for his father between 2005 and 2007. At that time his father was living Pesali on Mannar Island. His father had lived there for 10 or 15 years since 1990. The applicant only lived there for two years. The applicant said that the area where they lived was under the control of the Sri Lanka Army (SLA). It was put to the applicant that until 2008 large parts of Mannar were under the control of the LTTE. The applicant said that it was during the ceasefire when he was working in a Mannar. The tribunal put to the applicant that the ceasefire ended in 2006 and he said that he left Pesali in the latter part of 2006.
The applicant argues that he told the tribunal that he lived in a particular part of Sri Lanka which was controlled by the SLA. The tribunal plainly heard that evidence and recorded it in its reasons. The tribunal however put to the applicant that the same part of Sri Lanka was under the control of the LTTE until 2008, after the time when the applicant said he had lived there. The applicant argues that the tribunal failed to take account of the fact that many parts of Sri Lanka would change sides and one part of Sri Lanka may in one week be subject to LTTE control, but in the next week, the area may now be the subject of SLA control.
But as the first respondent argues, the tribunal made no findings in paragraph 22 of its reasons for decision. Paragraph 22 recounts the applicant’s evidence at hearing and the information that the tribunal had which indicated a contrary proposition. The tribunal discussed that information with the applicant at the hearing. Paragraph 22 records the information put to the applicant by the tribunal and what the applicant said in response to that information. The tribunal records no findings in that paragraph as the applicant alleges in his submissions.
Further, as the first respondent points out, even if a finding had been made that the applicant had not lived in an area controlled by the SLA any such finding of fact did not constitute a jurisdictional fact and did not mean that the tribunal failed to assess the applicant’s claims:
However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant ‘s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]
The applicant’s claims related to him being interrogated, beaten and threatened whilst in Mannar. The tribunal was clearly alert to that claim and accepted that the claimed event had taken place.
The applicant argues that paragraph 24 of the tribunal’s decision reveals that the tribunal has not taken into account a relevant matter. He argues that he had indicated to the tribunal “that he was the subject of regular police checks”. But yet, he argues, the tribunal, “denied that this was the case and further referred to various country information documents which indicated this to be the case. The tribunal however failed to acknowledge that there was country information which indicates that there is an intensity of checking by the SLA of Tamil people in the area where the applicant lived. The tribunal however failed to take account of this relevant consideration.”
Paragraph 24 is in the following terms (footnotes omitted):
24.Information available to the tribunal indicates in 2006 the LTTE controlled much of the Mannar district. A ceasefire commenced in February 2002, there were sporadic breaches of the ceasefire and in April 2006 these attacks escalated. In September 2007 there was fighting between the SLA and the LTTE in Mannar district that resulted in the displacement of thousands of people. A report from 2 September 2007 stated that the SLA launched a fresh offensive in the Vanni region to bring Silavaturai in the Mannar area, which was a key LTTE supply point, under government control. The LTTE had been using Silavaturai to transfer explosives to the South via Puttalam. Another later report refers to the intensity of the checking by the SLA of Tamil people in Mannar.
Paragraph 24 does not say what the applicant asserts it to say. Paragraph 24 contains a recitation of information from other identified sources to which the tribunal has had reference. It contains no recitation of any of the claims made by the applicant or any findings about any claims made by him.
The applicant submits that he indicated that he was the subject of regular police checks. However, the applicant made no such indication to the tribunal. He claimed that he had been interrogated by the police once and that similar episodes had happened to other people in the same area. But his claims did not go beyond that. Nor were they elevated to him being the subject of regular police checks by the submissions made for him to the tribunal. The tribunal acknowledged the applicant’s claim about being checked by the police and accepted it. In any event none of these matters were the subject of paragraph 24 of the tribunal’s reasons.
Moreover as the final sentence of paragraph 24 reveals, contrary to the applicant’s submissions the tribunal acknowledged that there was country information which indicated that there was an intensity of checking by the SLA of Tamil people in the area where the applicant lived. The tribunal plainly had regard to that report.
The applicant claims that both paragraph 25 and paragraph 41 of the tribunal’s reasons demonstrate jurisdictional error. Those paragraphs are as follows:
25. The tribunal accepts that at the time the applicant was questioned the SLA was concerned about LTTE activities in the Mannar area and accepts that the applicant was intercepted and threatened, beaten and was questioned in the manner described. The tribunal accepts that he was released with the intervention of his sister-in-law. The fact he was released suggests that the SLA was satisfied he was not involved in LTTE activities and could not provide information about them. The SLA did not find out his name or ask for any identification. In these circumstances the tribunal finds that there is no real chance that there is any record of this incident some nine years later or that it would result him being regarded as a supporter of the LTTE now, or in the reasonably foreseeable future. The tribunal finds that there is no real chance that this incident would lead the authorities to regard the applicant as a supporter of the LTTE or impute him with pro -LTTE sympathies on return to Sri Lanka and any fear of persecution on the basis of this incident is not well-founded.
…
41. It was suggested that he did not fall within any of the groups at risk. In response he said that he had always been suspected of supporting the LTTE. People suspected that they had helped suicide bombers and that they had provided goods and provided transport for the LTTE. The applicant then said that when he was abducted in 2010 they questioned him about helping the LTTE. He claimed that the incident in 2010 was linked to what happened in 2006. It was put to him that in 2006 they let him go without detaining him which indicated they did not think he was supporting the LTTE. Further as they did not obtain any identification from him they would not know he was involved in the previous incident. It was put to the applicant that if in 2010 they thought he had links to the LTTE they would have detained him and questioned him and monitored him more closely. The fact that they let him go indicated they did not think he was part of the LTTE. He said most people who are connected to the LTTE were assassinated. The applicant said that because of this he left Sri Lanka.
The common thread that runs through these paragraphs is the tribunal’s determination that because his captors released him, they must not have suspected him of involvement with the LTTE or otherwise have been of any interest to them. The applicant argues that the fact that the applicant was released from detention was an irrelevant consideration “when it comes to the issue of whether the applicant was the subject of persecution” and the tribunal should not have taken it into account. Further, the applicant argues: “The tribunal was of the opinion that most LTTE sympathisers are assaulted. As the applicant was not assaulted, therefore the applicant is not a sympathiser of LTTE. This is purely speculative proposition. It has no logical or probative basis. Let us drown the witch and prove that she is not a witch??”
However, whether the applicant was the “subject of persecution” was not to the point. To meet the criteria for the grant of the visa, the tribunal was required to be satisfied that the applicant had a well-founded fear of persecution for a convention reason in the reasonably foreseeable future if he were to return to Sri Lanka. That he had suffered harm at the hands of others in the past, even for a Convention reason, was relevant to that determination, because it might assist the tribunal to form a view about whether his subjective fear of persecution for a Convention reason in the reasonably foreseeable future if he were to return to Sri Lanka was well-founded. But of itself, it was not determinative of the issue before the tribunal. It was but an integer of the applicant’s claim to protection.
In circumstances where the tribunal had accepted the applicant’s claims that he had been detained and beaten by the SLA in 2006 it was always relevant for the tribunal to know that the applicant had been released from detention and the circumstances of that release. To the extent that the tribunal mentioned those matters in paragraph 25 of its reasons (or anywhere else in its reasons) it was not an irrelevant consideration and the tribunal committed no jurisdictional error by either noting or relying upon that matter.
Moreover, the tribunal was not prohibited from taking into account the fact that the applicant had been released from detention by his captors in 2010. The tribunal’s reasoning has a logical probity about it. If the applicant was of interest to his captors then it was, according to the tribunal, unlikely that they would have released him, or at the least monitored him more closely than he claimed to have been monitored. Whether that was correct or not, the tribunal’s reasoning could not be said to have been illogical or irrational. The fact that he had been detained and then released was a matter that the tribunal considered, for the reasons that it gave, relevant.
Further, the tribunal expressed no opinion that “most LTTE sympathisers are assaulted”. The tribunal did not reason that because the applicant was not assaulted, therefore he was not a sympathiser of the LTTE, as the applicant argues. Indeed, it was the applicant’s case that he was not a sympathiser of the LTTE but that he would be perceived to be. The perception, however, was unlikely to exist for the reasons given by the tribunal.
The applicant argues that paragraph 25 also discloses that the tribunal took into account another irrelevant matter, namely that “there was no record of the applicant being a member or a sympathiser of the LTTE, therefore he was not a member/sympathiser of the LTTE”. But the terms of paragraph 25 set out above make no reference to any such matter taken into account by the tribunal. What the tribunal did consider was whether the applicant’s detention and questioning in 2006 by the SLA was likely to lead to the applicant being considered an LTTE sympathiser either now or in the reasonably foreseeable future. In that respect the tribunal accepted the applicant’s claims that when he was detained and questioned in 2006 the SLA did not find out his name or ask for any identification. The tribunal concluded from that information that there was no real chance that:
a)there was any record of the applicant’s detention in 2006;
b)the incident would result in the applicant being regarded as a supporter of the LTTE now; or
c)the incident would result in the applicant being regarded as a supporter of the LTTE in the reasonably foreseeable future.
The applicant’s argument misconceives the tribunal’s reasons concerning the “record”. The tribunal was not considering whether there was a record of the applicant’s membership of the LTTE, but rather whether there might be a record of his detention and questioning that might be available now and from which it might be inferred that he was and continues to be a supporter of, or sympathiser with, the LTTE.
In paragraph 39 of its reasons, the tribunal sets out a number of determinations about matters raised by the applicant in support of his claims. Paragraph 39 is in the following terms:
39.The tribunal found the applicant’s evidence regarding the abduction by persons in a white van, and other visits to his home and work, to be vague and lacking detail. Further is it implausible if they believed he, or his brother, were supporting the LTTE, when they visited him they did not question him or take him for interrogation. The tribunal find it implausible that if they wanted to question the applicant regarding any perceived connections to the LTTE that they would not do so because there were other people present at his work. Further based on the applicant’s evidence there was no reason to suspect that he, or his family, had connections to the LTTE. The tribunal does not accept that during the period 2006 to 2010 they were trying to trace him. He was living in his home village and working. If they wanted to find him in relation to his brother’s claimed activities prior to 2006 it is implausible that it would have taken four years to find him.
The applicant argues that “the fact that the authorities questioned the applicant but did not take the applicant into custody does not mean that the applicant was not the subject of persecution. Quite irrespective of whether the applicant was or was not taken into custody, this does not mean that the applicant was not the subject of persecution. The fact that he was not taken into custody is an irrelevant consideration.”
But again, the applicant misunderstands the tribunal’s decision. The tribunal is obliged to consider the factual matters relied upon by the applicant in support of his claims. To undertake its task, the tribunal was required, where necessary, to make findings about the factual matters relied upon by the applicant. Paragraph 39 of its reasons is an example of the tribunal undertaking that task. In that paragraph, the tribunal considered the applicant’s claims about abduction by persons in a white van and other visits to his home and work. It explained why it did not accept those claims.
The applicant is, in practical terms, seeking to overturn the factual findings set out in paragraph 39. In Re The Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67], McHugh J observed:
In addition, the prosecutor alleges that the tribunal breached s.430(1) by failing to set out reasons for its finding that the prosecutors claim that members of PLOTE tried to recruit him were ‘utterly implausible’. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The tribunal must give the reasons for its decisions, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
The same must be said for the applicant’s argument that the tribunal also was of the opinion that the authorities would have interviewed the applicant even if there were other persons present. The applicant suggests that it was an irrelevant consideration. But it was an expression by the tribunal that it did not accept the applicant’s evidence about the reasons for which the ‘authorities’ would not interview the applicant when there were other persons present at his work.
Unreasonable, illogical or irrational decision making
The principle which permits the judicial review of an administrative decision on the grounds of unreasonableness only applies with respect to decisions involving the exercise of discretion. The position was summarized by Rares J in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [83] as follows:
The appellant is correct in observing that the remarks made by Crennan and Bell JJ in SZMDS (at [124]) concerning Wednesbury unreasonableness are part of their Honours’ analysis of the extent to which the process of fact finding might be regarded as unreasonable. As the appellant also notes, it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”. This is the test developed from S20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed.
In his written outline of argument and in oral submissions, the applicant’s solicitor made it clear that the tribunal’s decision to affirm the delegate’s decision was unreasonable. He argued that once the tribunal accepted the applicant’s claim that he was harmed in 2006 (by being threatened, detained and beaten by the SLA) the tribunal was bound to grant the applicant a protection visa. He argued that:
The tribunal has accepted that the applicant was beaten. If one is to be granted a protection visa, one needs to be satisfied that the applicant was the subject of persecution. In this case, the tribunal accepts that the applicant was beaten. If the tribunal accepts that the applicant was beaten, then the tribunal has no option but to grant the visa. Section 65 of the Migration Act 1958 provides in part that where the applicant satisfies the criteria, then the visa must be granted.
But the applicant’s argument pays no attention to the issue to which the tribunal must turn its mind, namely whether the tribunal was satisfied that the applicant had a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future if he were to return to Sri Lanka. To be granted a protection visa, the first respondent did not need to be satisfied that the applicant had been, or was, the subject of persecution, but rather that the applicant had a well-founded fear of persecution for a Convention reason. That he had been harmed in the past does not answer that question, although it may provide some basis for the tribunal to reach a positive answer to the issue it needed to determine. But it does not necessitate a positive outcome.
Here, the tribunal accepted the applicant’s claims about the 2006 incident but considered, for the reasons it gave, that the incident did not mean that the applicant had, objectively viewed, a well-founded fear of persecution for a Convention reason. Further, contrary to the applicant’s submissions, the tribunal did not conclude that the applicant was not the subject of persecution because he had been released by the SLA in 2006 after he was detained by them. The tribunal did accept the applicant’s claims about his detention and beating in 2006. But it made no findings that the applicant was the subject of persecution. Moreover, the tribunal did not conclude that because the applicant was released he was not the subject of persecution. The tribunal inferred from the fact of the applicant’s release by the SLA that he was of no interest to them as an LTTE sympathiser. That was an inference that was clearly open to the tribunal.
A finding of fact will be considered irrational or illogical if no rational or logical decision-maker could have arrived at the finding on the same evidence: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 61 at [40]-[44], [130]-[132] and [147]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 61 at [130]. The “correct approach is to ask whether it was open to the tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.”: SZMDS (above) at [133]. “To describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it”: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34].
The applicant’s arguments are with the tribunal’s fact finding. On the facts as found by the tribunal, its conclusion to affirm the decision under review could not be said to have been unreasonable. Indeed, it made the only decision it could have made on the facts as it found them to be.
The applicant argues that there is illogicality in the tribunal’s decision making revealed in paragraphs 25, 39 and 41 of the tribunal’s reasons.
Referring again to paragraph 25 of the tribunal’s decision, the applicant argues that if the tribunal accepted that the applicant was beaten, as it did do, then “the tribunal has no option but to grant the visa”. He argues that the tribunal’s reasoning that because the applicant was released from detention “the applicant was not the subject of persecution” is illogical and irrational. But the tribunal made no such finding. The tribunal considered that there was no real chance that the incident that happened in 2006 “would lead the authorities to regard the applicant as a supporter of the LTTE or impute him with pro –LTTE sympathies on return to Sri Lanka and any fear of persecution on the basis of this incident is not well-founded” (my emphasis).
The applicant’s claim to a protection visa failed because, notwithstanding the tribunal accepting that he had been detained and questioned by the SLA, his fear of persecution should he be returned to Sri Lanka was not well-founded. That was because, amongst other reasons, the tribunal found that he was of no interest to the SLA and was unlikely to be suspected of links to the LTTE. There is nothing illogical about the tribunal’s reasoning when that reasoning is considered against the test that the tribunal was required to apply.
The applicant argues that the fact that the applicant was released by the authorities does not mean that the applicant was not the subject of persecution. He argues that he was the subject of persecution even though he was released from custody. He argues that the tribunal had no evidence before it which explained the reason why he had been released from custody and that the tribunal made a jurisdictional error because it had no evidence for its finding that “the applicant was not the subject of persecution”.
One of the tribunal’s tasks is to find the facts upon which the application must be determined. In doing so, the tribunal is entitled to draw inferences from other facts that it has found. That is what the tribunal did when it considered that the applicant’s release from detention by the SLA and the lack of any record of his detention suggested that he was of no interest to the SLA as an LTTE sympathiser.
Paragraph 43 of the tribunal’s reasons are in the following terms:
43.The tribunal is of the view that if the Sri Lanka authorities suspected the applicant of helping suicide bombers and providing food and support to the LTTE they would have detained him for interrogation and not released him so readily. Further he only made this claim after these activities in support of the LTTE were put to him by the tribunal as high risk activities that would result in the attention of the Sri Lanka authorities on return. The willingness of the applicant to change his evidence in response to matters put by the tribunal reflects adversely on the credibility of these claims.
The applicant repeats his argument that the tribunal had no evidence upon which it could find that the applicant was not the subject of persecution. But for the reasons I have given above, this argument cannot succeed. The reasoning of the tribunal is transparent. It is not illogical or irrational.
No evidence
The applicant, it is argued, claimed that he stated that he believed that he was the subject of persecution because of the political activities of his brother. He complains about the way in which the tribunal dealt with this issue. The relevant paragraphs of the tribunal’s decision are as follows (footnotes omitted):
28.The applicant told the tribunal he believed that his older brother was working in Jaffna as that is what his brother told him. The applicant believed his brother worked in an LTTE controlled area. The tribunal discussed with the applicant that Jaffna was not under the control of the LTTE between 2002 and 2005 when he claimed his brother was working there. The applicant was asked why he thought his brother was working in LTTE controlled area and he responded it was because of that problem that his brother came to Australia. The applicant said that he did not know why his brother left his work in Jaffna and could not elaborate on what problems he claimed to have there. When the applicant’s brother returned from Jaffna the applicant was living in Mannar and then the applicant returned to Chilaw about five or six months later. He never saw his older brother in their home village as his brother was living 10 km away at Iranawalia.
29.He was asked if he was aware whether his older brother had any problems with the Sri Lankan authorities, between 2005 and when he left Sri Lanka, and he said that his brother was a fisherman out on a boat; he was not sure.
30.The applicant’s brother was working in Jaffna during the ceasefire. As discussed with the applicant Jaffna was not under the control of the LTTE when he claimed his brother was working there. In December 1995 the SLA took control of Jaffna. It however did not control the Jaffna peninsula at this time.
31.The applicant was very vague in relation to where his brother was working and what he was doing. He could not explain why he believed his brother was working in an LTTE controlled area and could not elaborate on what problems he had there or what caused him to leave. On the evidence before it, the tribunal is not satisfied that the applicant’s brother was working in an LTTE controlled area between 2002 and 2005. Further the applicant was not aware if his brother had any problems with the authorities between 2005 and when he left Sri Lanka and the tribunal is not satisfied that the applicant’s brother experienced any difficulties as a result of his claimed work in the Jaffna area. The applicant was not aware if his brother had any difficulties with the authorities either in Jaffna or once he left there. The tribunal is not satisfied on the evidence before it that as a result of working in the Jaffna area his brother was regarded as supporting the LTTE. The tribunal finds that there is no real chance that the fact his brother worked in Jaffna between 2002 and 2006, would lead the authorities to regard the applicant as a supporter of the LTTE or impute him with pro-LTTE sympathies on return to Sri Lanka and any fear of persecution on this basis is not well-founded.
He argues that the tribunal has cast doubt on these claims about his brother. But as the tribunal recorded, there were no claims made about his brother ever being suspected of supporting the LTTE. At best a claim that the applicant might be suspected of supporting the LTTE because his brother lived in an LTTE controlled area and was therefore likely a sympathiser himself arose on the material. That claim was dealt with by the tribunal in the way set out above.
Despite the applicant’s arguments, the tribunal did not:
a)express the view that because the applicant was vague about where the brother worked, therefore the claims about the brother were concocted;
b)find that the applicant was lying about the claim concerning his brother.
The applicant argues that “When the tribunal stated that it did not believe the applicant’s claims about the whereabouts of the brother, the tribunal had no evidence for such a finding. The only evidence which was before the tribunal was the applicant’s claims about his brother. If the tribunal is going to reject that claim, then the tribunal needs to be able to point to some alternative explanation, that is, some evidence which could base the tribunal’s finding that the applicant was not working in a LTTE area.”
It is for the applicant to satisfy the tribunal of his claims. The tribunal is not obliged to accept, uncritically, all claims made by the applicant. The tribunal had material before it that suggested that Jaffna was not controlled by the LTTE at the time the applicant alleged his brother worked there (1995: Jaffna falls to Sri Lankan army On this Day 5 December BBC The tribunal put that information to the applicant for his comment.
Rather than the tribunal’s reasons disclosing that it had made findings about these matters, the tribunal’s reasons reveal that it was not satisfied about the applicant’s claims.
The applicant argues that in paragraph 44 of its reasons, the tribunal “has no evidence for its findings that that the comments were merely gossip or for that matter it was not acted on by the authorities. The tribunal has formed the opinion that because the person is not a person of credibility, therefore the applicant’s claims are to be rejected. This is why the tribunal has declared such comments to be of a minor nature when it has no evidence for such a finding.”
Paragraph 44 is in the following terms:
44.The tribunal accepts that the Sinhalese neighbours may have made comments about the applicant (and his family) supporting the LTTE but finds that this was gossip that was not believed or acted on by the authorities. If the SLA believed in 2006 (when he returned from Mannar) that he was supporting the LTTE they would have taken action against him at that time when he returned. Particularly given the war was still ongoing at this time. The tribunal finds that the applicant’s account of being abducted because he was suspected of supporting the LTTE or because his family or brother was suspected of supporting the LTTE is not credible. The tribunal does not accept that the authorities had an interest in the applicant’s brother as the applicant could not explain why they would. His evidence regarding the abductions and visits by the white van was vague and confused and it is unclear how many visits he was claiming occurred.
The reasoning process in this paragraph reveals no jurisdictional error. The tribunal’s finding that the comments of the neighbours were not acted on by the authorities was open to the tribunal on the evidence.
The applicant argues that in paragraph 45 of its reasons, the tribunal had no evidence for its finding concerning abduction. Paragraph 45 is in the following terms:
45.The tribunal finds the applicant has not been abducted by people in a white van or that a white van has come looking for him or that they approached him at work. The tribunal does not accept that the Sri Lanka authorities have interrogated him or attempted to interrogate him since 2006. The tribunal does not accept that the applicant and his family were suspected of supporting the LTTE or that they were suspected of helping suicide bombers or that they had provided goods and provided transport for the LTTE. The tribunal finds that the applicant has fabricated this aspect of his claims. The tribunal does not accept that the applicant’s older brother, Sudath was suspected of supporting the LTTE and that the applicant was questioned in relation to his brother’s activities. Consequently the tribunal finds that there is no real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of any suggestion that he or his brother or his family were supporters of the LTTE and that any fear of persecution on this basis is not well-founded.
The tribunal’s findings were open to it on the material before it once the tribunal determined that it did not accept the applicant’s claims. This paragraph reveals no jurisdictional error.
The applicant also argues that the tribunal fell into error in paragraph 46 of its reasons because it “has no evidence for its finding concerning his support for the LTTE”. Paragraph 46 provided:
Fear of Harm as Tamil
46.The tribunal has found that the applicant has not been suspected of supporting the LTTE. Consequently the tribunal does not accept that as a result of being Tamil the applicant is suspected of supporting the LTTE.
For the reasons explained by the tribunal, it was not satisfied that the applicant was suspected of supporting the LTTE. The tribunal’s reasons were clear and thorough. The applicant failed to satisfy the tribunal that he had a well-founded fear of persecution for a Convention reason.
The applicant claims that the tribunal had no evidence to support its findings set out in paragraphs 62, 70 and 71 of its reasons. Those paragraphs provide (footnotes omitted):
62.Based on the evidence before it the tribunal is not satisfied that the applicant’s brothers in Sri Lanka are in hiding due to fear.
…
70.The tribunal discussed with the applicant the groups that are regarded at risk on return, such as persons with certain connection to the LTTE, political activists, journalists, human rights activists and noted the applicant was not within the groups that the UNHCR has regarded to be at risk. The tribunal finds that the applicant has not been perceived to be member of these categories and that there is no real chance that he would be perceived to be within any of these categories in the reasonably foreseeable future.
71.The country information indicates that it is those people who are suspected of supporting the LTTE who might be at risk on return. The tribunal has found that the applicant and his family have not been suspected or perceived to have supported the LTTE. The information provided does not establish that the Sri Lankan authorities regard asylum seekers as LTTE members and/or supporters. If this was the case to make a distinction between those with connections to the LTTE and those without would be meaningless.
In paragraph 62 the tribunal dealt with the applicant’s claims that two of his brothers were in hiding in Sri Lanka. The tribunal set out the applicant’s evidence about these claims in paragraphs 59, 60 and 61 of its reasons. Rather than make any findings about the matter, the tribunal expressed that it was not satisfied that the applicant’s brothers in Sri Lanka were in hiding due to fear. No jurisdictional error is revealed by this paragraph.
In paragraphs 70 and 71 of its reasons, the tribunal was dealing with the applicant’s claim to complementary protection. As those paragraphs reveal, the tribunal considered that because it was not satisfied that the applicant had been, or would be suspected of supporting the LTTE, he would not be within a class of returnee that the material before the tribunal indicated would likely be at risk of serious harm. After considering the other matters raised by the applicant and the material suggestive of a claim to complementary protection, the tribunal rejected that claim at paragraph 106 of its reasons.
Other matters
The applicant contends that the tribunal impermissibly relied upon country information to reject the applicant’s claims rather than considering the particular personal circumstances of the applicant and examining whether the applicant was in fact the subject of persecution.
But the tribunal did just that. It considered the applicant’s claims and the personal circumstances that he chose to put before the tribunal. The tribunal tested some of those claims against the independent country information available to it. It put to the applicant for his comment, the significant aspects of that information. The tribunal recorded in its reasons the applicant’s responses to the information and made determinations about the applicant’s claims. That was the tribunal’s function. The use of country information by the tribunal reveals no jurisdictional error.
Finally, the applicant argues that the adoption of “an illogical approach” revealed in, for example paragraphs 25 and 39 of the tribunal’s reasons “quite clearly establishes the bias of the tribunal in this matter”. He argues that “The tribunal would not have adopted such an approach if the tribunal had not already formed the opinion that the applicant was not the subject of persecution. The tribunal was looking for an excuse to refuse the visa and the tribunal adopted this absurd rationale about being released from custody. The tribunal has already acknowledged that the applicant was the subject of persecution. The fact that the applicant was released from detention does not alter this fact.”
No allegation of bias was raised in the applicant’s Application for Review. Such an allegation needs to be properly raised and proved by appropriate evidence. Rarely can that be accomplished by reference to the tribunal’s reasons for decision alone. There is no evidence of bias on the part of the tribunal in the present matter. To the contrary, the tribunal’s reasons reveal a conscientious and thorough consideration of the applicant’s claims.
Conclusion
The matters raised by the applicant do not reveal any jurisdictional error on the tribunal’s part. The application for review must be dismissed with costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 July, 2016.
Date: 8 July, 2016
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