AYO15 v Minister for Immigration

[2015] FCCA 2860

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2860

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa –applicant found to have been an active member of JVP in the past – whether Tribunal erred in making adverse findings of credit – whether applicant has profile to attract adverse attention from authorities in Sri Lanka – real chance test – whether there is a real chance applicant will suffer persecution if returned to Sri Lanka – whether applicant was put on notice that certain issues were live – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 424A(1), 424(3)(a),

425, 476.

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507
Minister for Immigration and Border Protection v SZTFJ [2015] FCA 1052
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] 172 FCA 1
SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002
Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547
Chan Yee Kin v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister of Immigration and Ethnic Affairs v Guo Wei (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalangam (1999) 93 FCR 220

Applicant: AYO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1537 of 2015

Judgment of: Judge Street

Hearing date: 20 October 2015

Date of Last Submission: 20 October 2015

Delivered at: Sydney

Delivered on: 20 October 2015

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1537 of 2015

AYO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal dated 30 April 2015 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country as the receiving country.  The applicant left Sri Lanka on 23 June 2012 and arrived at Christmas Island on 10 July 2012. 

3. On 27 February 2013, the applicant lodged an application for a protection visa.  The delegate refused to grant a protection visa on 28 February 2014.  The applicant's claims can be summarised as follows.  The applicant is of mixed Tamil and Sinhalese ethnicity and Christian religion.  In 1983 the applicant's family house was burnt down during riots between Tamils and Sinhalese, and he relocated to his maternal grandparents’, then a few weeks after the riots his father had a heart attack.

4. In 1987, the applicant’s father had been working for a ports authority in a particular location and was regularly harassed, threatened, and mistreated because of his surname, which was the same as one of the LTTE leaders.  The government accused the applicant's father of a family connection to the LTTE, and his father became depressed and died from a heart attack.

5. After his father’s death, the applicant's mother changed the family’s surname to a Sinhalese surname to protect them.  After the father’s death, the applicant was resentful towards Sinhalese people who he blamed for his father’s death.

6. In 1988 the applicant joined the Janatha Vimukthi Peramuna (JVP) party.  The applicant's role in the JVP was to put up posters.  One night in 1989 the applicant was alone at home, and he was abducted by men in a white van, blindfolded and taken to what he assumed was a Sri Lankan Army detention facility and kept for 14 days in a dark room.

7. While the applicant was detained his feet were burnt and he has scars on his feet from this.  The applicant says his cousin managed to secure his release, and on his release he was blindfolded, taken in a van, and thrown out of the van somewhere in a particular district.  The applicant arrived home and his mother pleaded for him to stop his involvement in politics, and from that day he stopped all involvement with the JVP.

8. In 2009, prior to the 2010 election, the applicant became involved in political campaigning and canvassing in support of General Fonseka.  The applicant with fellow campaigners fought for Fonseka’s freedom and attended rallies and protests, and large-scale protests, against the government outside the [X] Magistrate’s Court in November 2011.

9. In June 2012, the applicant's mother contacted him while he was away from the house at work and said unidentified men had been at the house looking for him.  The men came once during the day and once later that night, and again the following night. 

10. The applicant said as he had been politically active with the UNP since the 2010 presidential elections, he assumed the men were trying to find him to prosecute him for these things.  The applicant’s mother told him about the visit and he did not return home.  Instead he travelled straight to another location and lived there for a short time before boarding a boat for Australia with a friend. 

11. The applicant says he fears if he returns to Sri Lanka he would be arrested, tortured, and killed by supporters of political parties in opposition to the UNP, or by the Sri Lankan authorities on account of his political opinion opposed to the Sri Lankan Freedom Party (SLFP) and the Sri Lankan Government.  The applicant said he fears if he returns to Sri Lanka he would be harmed or mistreated due to his membership of a particular social group, namely, failed asylum seekers, and that the authorities in Sri Lanka will not protect him. 

12. Before the delegate the applicant acknowledged that from 1989 to 2009 he was not politically active.  The applicant's fears, identified through the delegate, do not expressly refer to an ongoing fear because of association with the JVP.  The delegate made findings that he accepted the applicant was abducted, detained, had his feet burnt in 1989, due to his political activities for the JVP party. 

13. The applicant appeared before the Tribunal on 25 March 2015 to give evidence and present arguments, and was assisted by an interpreter, and was represented by his registered migration agent.  Before the Tribunal, the issues were said to be whether the applicant meets the refugee or complementary protection criteria because of his mixed Tamil and Sinhalese ethnicity, because of his imputed or actual political opinion as a supporter of the JVP and the UNP, and because he departed Sri Lanka illegally and would return to Sri Lanka as a failed asylum seeker.

14. In relation to the applicant's claims concerning an actual or imputed political opinion, the Tribunal noted that the applicant claimed that some time in 1988 he had commenced  doing voluntary work for one and a half years for the JVP, and that he was 18 years old at the time.  The applicant informed the Tribunal that he assisted the party by putting up posters, and distributing pamphlets, and attending rallies, and giving letters to shopkeepers as part of the protest against the government.  The applicant identified that he was unsure who prepared the letters, which were to the effect that the Tamils and Sinhalese should live in unity. 

15. The Tribunal referred to the applicant's alleged claim on 20 January 1989 of being abducted, and noted the Tribunal questioned the applicant if he knew why he was abducted.  The applicant said to the Tribunal that people were asking questions about the letters he was distributing.  The Tribunal records that the applicant said he did not know what to say, because he did not have much knowledge of the JVP, and was unable to name anyone from the JVP.

16. Reference was made to the applicant being put in a van and thrown out in the street, having to make his way home, and in response to the question from the Tribunal as to whether it was only the applicant that was abducted, the applicant said others were abducted.  The Tribunal asked the applicant to explain how many others were abducted, and the applicant said he had heard in the news at the time that there were many abductions in Sri Lanka.  The Tribunal noted that it had questioned the applicant about the circumstances of his release in respect of which the applicant contended his brother-in-law played a role. 

17. The Tribunal asked the applicant how the brother-in-law knew the applicant was abducted and where to find him, and that in response the applicant claimed that at the time, many young people were abducted.  The applicant said his mother told him that his brother-in-law secured his release, but he said that his brother-in-law never told him what happened.  The Tribunal asked the applicant if he reported what happened to the JVP leaders, and the applicant said he did not, because his mother had asked him to stop his involvement in politics.

18. The applicant did say that he had reported the incident to the police, but they had not taken any action, and that after this time he ceased all involvement with the JVP.  Relevantly, the Tribunal said:

    38. The Tribunal found the applicant’s explanation about his involvement and activity in the JVP vague and lacking in detail. For example according to the applicant’s evidence he only commenced to assist the JVP in 1988, had no prior political involvement or profile and was abducted in Janary1989. The Tribunal is surprised a person with the applicants brief and limited political involvement would be abducted, questioned, tortured and detained for 14 days. The applicant was only able to speculate if other people working with him were abducted based on media reports at the time. The Tribunal finds it surprising that he would not report the abduction to senior JVP leaders so they could take action and warn other party members. The Tribunal also found the applicant’s evidence about the circumstances in which he was released lacking in credibility. In written submissions the applicant claims he was released due to confidential negotiations with the SLA at the hearing. He said the SLA had no involvement in his release and it was arranged by his cousin. He was unable to provide any further information about his release.

    39. The applicant said that from 1989 to 2009 he had no involvement in politics and worked for the family grocery store. The Tribunal asked the applicant if he has any problems with the Sri Lankan authorities. The applicant said he never had any problems, was not arrested, detained, charged or convicted.

    …

    43. The applicant said he was scared and went into hiding. The Tribunal asked the applicant to explain why he was scared. The applicant said he feared returning to Sri Lanka because he had faced death in 1987 when he was abducted. The Tribunal told the applicant it was surprised that he would believe that he would be killed when nothing happened to him from 1989 to 2009. The applicant claimed he was in danger because he was helping Fonseka.

    44. As stated above the Tribunal also found the applicant’s evidence about his involvement in the UNP vague and lacking detail. The Tribunal accepts that the applicant may have been motivated by Fonseka and supported the UNP by putting up political posters and attending rallies. Having considered the applicant’s evidence the Tribunal does not accept the applicant was a member of the party or played an active role in the UNP or had a profile as an active member or political activist opposed to the Sri Lankan government.

    45. The Tribunal finds the applicant was an ordinary supporter of the UNP who would have attended rallies with other supporters. The Tribunal finds the applicant’s profile as an ordinary supporter inconsistent with his claim that he would be targeted and people would come to his home looking for him. The Tribunal found the applicant’s evidence about why people would come to his home looking for him vague and ambiguous. The applicant was never home when the people attended. His mother was unable to provide any information to him about the purpose of the visit. There is no evidence about the identity of the people who attended his home or purpose or motive behind the visit. There is no evidence the applicant was personally threatened or harmed. In the circumstances the Tribunal finds it surprising the applicant would claim that he feared for his life and had to flee his home area and travel to Australia because of his political opinions.

    …

    48. As stated above, the Tribunal found the applicant’s evidence about his political involvement in Sri Lanka vague and lacking detail. He has had no involvement with the JVP since 1989. He admitted he did not experience any threat or harm until 2012.

    …

    51. Recent Media reports also confirm that there has been a positive change in the political landscape of Sri Lanka since the applicant departed in July 2012. For example it is reported that in the first few days of Sirisena’s presidency the new government brought change, previously blocked Web sites have become viewable, surveillance of journalists has been officially discontinued, and political exiles had been invited home. Reinstatement of impeached Supreme Court Justice Shirani Bandaranayake has also commenced.

    52. Looking into the reasonably foreseeable future, the Tribunal finds that there is no real chance the applicant would be persecuted by the members and supporters of the SLFP or any other party opposed to the UNP if he returns to Sri Lanka. The Tribunal is not satisfied that the applicant’s fear of harm because of his actual or imputed political opinion in Sri Lanka is well-founded.

    53. For the same reasons, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.

19. The Tribunal turned to the issue of the applicant being a failed asylum seeker, and noted that the applicant’s evidence at the hearing was different from his written submissions. The Tribunal relevantly found: 

    56. …The Tribunal questioned the applicant about the inconsistency. Having heard the applicant’s evidence the Tribunal finds, the applicant was not a people smuggler and had no involvement in the transport of asylum seekers to Australia.

    …

    62. As stated above the applicant is a resident of Colombo, he has had an association with the LTTE. He has been able to obtain a Sri Lankan passport and has regularly travelled to India for business. The Tribunal does not accept that because of his mixed ethnicity or his father’s surname he will perceive to be associated with the LTTE.

    63. The Tribunal has found no evidence to indicate the applicant had any adverse political profile as a supporter or member of the LTTE or as someone who was opposed to the government prior to his departure from Sri Lanka.

    …

    68. As stated above, the Tribunal has found that the applicant did not have an adverse political profile at the time of his departure from Sri Lanka.

    …

    80. The Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or singled out or treated differently because of his mixed ethnicity or because he is a member of a particular social group of failed asylum seekers or any other particular social group.

    …

    82. Accordingly, having considered all the evidence in relation to the situation for returnees, the Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, there is very limited evidence of returnees suffering mistreatment, either upon their arrival or following return to their villages. The Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival or the fact of his illegal departure from Sri Lanka, and the authorities’ awareness that he has applied for asylum in a Western country and has lived in a Western country for some time.

    83. Therefore, having considered the independent evidence and the applicant’s personal circumstances, the Tribunal is also not satisfied that there is a real chance that he would suffer serious harm amounting to persecution on arrival in Sri Lanka or upon his return to his village because he is from a particular social group of failed asylum seekers or any other particular social group of persons who left Sri Lanka illegally and unsuccessfully sought asylum overseas.

20. The Tribunal then turned to the issue of complementary protection, including that it was not satisfied that the applicant was a person in respect of whom Australia had a protection obligation, and that the applicant did not meet the criteria under ss.36(2)(a), or 36(2)(aa). The grounds of the amended application are as follows:

    1. The Tribunal engaged in jurisdictional error by failing to comply with its obligations under sn 424A of the Act.

    Particulars

    a. The following comprised information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (Tribunal’s Decision, [51]) (Information):

    …

    iii. reports to the effect that the reinstatement of impeached Supreme Court Justice Shirani Bandaranayake had commenced.

    b. The Information was not “just about a class of persons of which the applicant or other person is a member” or otherwise a category of information identified in section 424A(3).

    c. The Tribunal was obliged to, but failed to, comply with its obligations under s 424A(1)-(2) in respect of the Information.

    2. Further and in the alternative, the Tribunal engaged in jurisdictional error by failing to comply with its obligations under s 425 of the Act.

    Particulars

    a. An issue before the Tribunal was the nature of changes in the political landscape of Sri Lanka since the applicant departed in July 2012 (CB210). This was not an issue before the Delegate;

    b. Further and in the alternative, although the Delegate accepted that the applicant was abducted, detained and had his feet burnt in 1989 due to his political activities for the JVP party (CB105.9), these claims were in issue before the Tribunal;

    c. The Tribunal was obliged to identify the said issues to the applicant in a manner compliant with s 425. It failed to do so.

    3. Further and in the alternative, the Tribunal asked itself the wrong question, failed to ask itself the right question, or failed to apply the right test.

    Particulars

    a. The Tribunal considered key aspects of the applicant’s claims by stating that they were surprising, without it accepting or rejecting the claim (CB208[38]-[45]).

    b. Further and in the alternative, if it is contended by the Minister that the Tribunal implicitly rejected the said claims, it asked itself the wrong question by disposing of the claims without asking itself whether it was satisfied as to the occurrence of the claimed events and/or without asking itself what if it was wrong.

21. The first ground advanced by the applicant focused upon the last sentence of para.51 referred to above.  Counsel for the applicant accepted that the last sentence had to be read in its context, and in its context, was a derivative reference from the recent media reports referred to in the opening sentence to para.51, and clearly, in expansion of the topic of positive change in the political landscape of Sri Lanka, since the applicant departed in July 2012.

1. The applicant put that the reinstatement of the impeached Supreme Court justice referred to in the last sentence was information that fell within s.424A(1). The reference to the reappointment of the impeached justice on a fair reading of the Tribunal’s decision is a reference to the improvement in the rule of law in the context of the changed political landscape identified in the media reports to which the Tribunal was referring since the applicant departed in July 2012.

2. I accept the first respondent’s submissions that this reference to reinstatement is not information which constituted a reason or part of a reason for rejection, denial or undermining of the applicant’s claims, see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]; Minister for Immigration and Citizenship v  SZLFX  and Anor (2009) 238 CLR 507 at [22]; Minister for Immigration and Border Protection v SZTFJ [2015] FCA 1052 at [30] to [32].

3. The reinstatement of the judicial offer in the context of a positive change in the political landscape was not information to which s.424A(1)(a) refers.

4. I accept the first respondent’s submissions that the reference to the reinstatement of the justice in the context of positive changes is not capable of undermining the applicant’s claims, and that no breach of s.424A(1) is made out. Ground 1 fails to make out any jurisdictional error.

5. In relation to ground 2, the applicant relied upon the reference in para.51 to the changed political landscape as being a matter falling within the principles identified in SZBEL v Minister for Immigration and Multicultural and Ethnic Affairs (2006) 228 CLR 152 at 35.

   35. The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

6. The applicant also relied upon what was said in the Full Court in SZHKA v Minister for Immigration and Citizenship [2008] 172 FCA 1 at 6 and 7:

   6. Section 425(1) has two particular features that are important in the determination of the larger issue in the present cases. The first is that the hearing to which an applicant must be invited is for two purposes, for him or her to give evidence and for him or her to present arguments. Although the word “evidence” in relation to the material placed before an administrative decision-maker may not be entirely appropriate, the obvious intent of s 425(1) is that the applicant should have an opportunity to provide information particularly within his or her personal knowledge to the person who will make the decision. This is an important right. No less important is the opportunity to present arguments. It is this opportunity that gives an applicant the chance to persuade the decision-maker to accept the accuracy of the information provided by the applicant, to reach the conclusion that that information should be regarded as more reliable, or as having more weight, than conflicting information that the tribunal may have, or that apparent conflict between information supplied by the applicant and that gathered by the tribunal is not real or substantial. It is clear from the express inclusion of the right to present arguments that parliament regarded the right to attend a hearing for this purpose, as well as for the purpose of providing information, as of great importance to an applicant.

   7. The second important aspect of s 425(1) is that the evidence and arguments are to relate to “the issues arising in relation to the decision under review.” The focus on this element of the subsection was the basis for what the High Court of Australia decided in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ; 231 ALR 592 ; 93 ALD 300 ; [2006] HCA 63. For present purposes, it is not necessary to quote the whole of what the High Court said at [33]–[40], but certain points emerge clearly from that passage. First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the tribunal’s conduct of the review of that decision. Third, because the tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the tribunal might not be persuaded by that material; the tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]–[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.

7. The applicant relied upon what was said in SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 at 33 to 36.

   33. Further guidance may be derived from SZBEL as to what is required to “identify” issues. The facts there were that the Tribunal had elicited the same description of events from SZBEL as he had given in an earlier statutory declaration. Therefore, that an issue is the subject of oral evidence before the Tribunal, or that the appellant’s version of events is elicited, is insufficient by itself to identify an issue.

   34. What is required is that the appellant be somehow alerted to the fact that the issue is live. That may be done in a number of different ways including by the Tribunal challenging what the applicant has said and asking the applicant to explain why his or her account should be accepted. But, that does not require the Tribunal to put to the applicant (in so many words) that he or she is lying or embellishing, nor to disclose what it is minded to decide.

   35. Counsel for the Minister submitted, “as long as there’s nothing the tribunal member says that gives the appellant the impression his evidence will be accepted then that is sufficient,” and that “nowhere in that passage could it be suggested to the appellant that his claim about offering a bribe to be released from detention was going to be accepted or that the delegate’s finding was going to stand in relation to that point. So there has been no procedural unfairness… .” That was in keeping with the Minster’s submission elsewhere that it was sufficient for the appellant to have been given an opportunity to explain himself in regard to a particular issue.

   36. I do not accept these submissions. More is required that that the Tribunal abstain from positively indicating to an appellant that his or her account will be accepted. More is required than that an appellant be merely given an opportunity to explain himself or herself. So much is evident from the fact that in SZBEL the relevant evidence was “elicited” by the Tribunal without further comment and that, notwithstanding that elicitation, it was held that procedural fairness had not been afforded. There must be something that indicates to the appellant that the issue is live.

8. The Tribunal, at the hearing asked the applicant whether the current government had people in it from the UNP and the applicant identified that the prime minister is from the UNP and the applicant said because the president has changed, the government has not changed.  The transcript of the hearing relevantly records:

   MEMBER: You-you seem to be quite pessimistic because you ah try to look for a future for Sri Lanka you joined the JVP as a young man with high expectations.

   INTERPRETER: Ah at the time yes it was ah with my father's death I rethink ah beyond that ah because something with against the Singhalese and the Tamil that was the only thing I was thinking about that either.

   MEMBER: Than you became involved the UNP?

   Again, you had high expectations?

   INTERPRETER: In that again in ah 2012 that era ah it was all a family thing that was happened. The President, the Finance Minister um the Minister For Affairs everything was from one family and all again because another class ah there was another [Inaudible] classes was coming.

   MEMBER: Okay so now in 2015 things are looking more positive, I don't understand why you aren't able to articulate to a-whether you support the UNP or you don't support the UNP whether your happy that the Prime Minister is UNP.

   INTERPRETER: Ah no I am not very happy with that.

   MEMBER: Okay are you really involved and interested in politics or are you just saying that in support of your protection application?

   INTERPRETER: No I am a person who has a worked in ...

   MEMBER: Well what did you do?

   INTERPRETER: I-I went on his poster campaign, I went to and attended his meetings and I stayed with the [Inaudible]_ saying that the [lnaudbile]that should be made the ah the president of the country I was right about determining that he should become that.

   MEMBER: So you-you attended meetings and you were part of a poster campaign?

   INTERPRETER: Yes.

   MEMBER: Okay, I still want to know why you ah fear going back to Sri Lanka looking into the future?

   INTERPRETER: Yes I'm scared even before I'm living here that was also I'm still scared. mentally ah also I am very scared.

   MEMBER: Well tell me why you were scared?

   INTERPRETER: In 2012 so-some people came into my house looking for me at that time I was not in the house.

   My mother called and told me don't come into the house because some people came looking and asking for you.

   MEMBER: Do you know who, do you know who they were?

   INTERPRETER: I don't know who they are.

   Even my mother don't know.

   MEMBER: Well that's a bit general and a bit vague I mean unknown men came to your house you don't know who they are your mother does not know who they are do you have any enemies do you owe money to people?

   APPLICANT: No, no, no.

   INTERPRETER: People do not come ah with ah with ah pistols to look for me.

   MEMBER: Well I've read what you said about the unknown men coming to your house but it's really strange you haven't explained to me anything about it.

   It's easy for you to say I'm scared to go back because of unknown men but that doesn't help me I don't know their purpose are they criminals is it a random attack?

   INTERPRETER: I was not at home at the time to say who came.

   MEMBER: How many ...

   INTERPRETER: Because of that I can't say anything about that issue.

   MEMBER: Okay how many times did these people come or how many times did the unknown people come to your house?

   INTERPRETER: On the seventh night they come on the eighth night and the ninth night they come ah to my house looking for me.

   MEMBER: Well if people are looking for you um they can go to the shop and find you.

   INTERPRETER: They did not know that I was not in the shop.

   MEMBER: They would have known that.

   INTERPRETER: I was not in the shop.

   MEMBER: Okay well where were you?

   INTERPRETER: In the ...

   In the ...

   In the ...

   In the, I was hiding in Negombo, ah with [X].

   APPLICANT: [X], Yes.

   [X], I was scar-scared that I will be killed.

   MEMBER: Why were you scared that you would be killed?

   INTERPRETER: Because once I was a person ...

   That was in 1987.

   MEMBER: Because what sorry?

   INTERPRETER: Because I faced death ah in 1987.

   MEMBER: That was a long time ago.

   INTERPRETER: Yes so with that ...

   Though It was a long time ago it is something that I can't forget.

   MEMBER: Okay but it looks to me as if a-after 1989 you didn't have any more problems apart from the strange people coming to your house.

   INTERPRETER: I do not understand that.

   MEMBER: So you,-So it you told me that you were hiding in the Negombo, I asked you why you said I was scared because I was ah because of what happened to me in 1987, you-you faced death.

   I than said um it appears from your evidence that nothing has happened to you since 1989 when you were abducted until the strange men came to your house.

   INTERPRETER: The reason for this is because I work for General Sarath Fonseka.

   MEMBER: But you-you-you did you work for him what do you mean by worked for him?

   INTERPRETER: I br ...

   I. ..

   I will, I will promise ah poster campaign, I attended his meetings and I went on saying that he should be made ah the President.

9. The transcript continues at page 30:

   MEMBER: So you're according to your evidence your profile stems from your political involvement in 1988-89.

   And from your involvement with the UNP in 2009?

   INTERPRETER: Yes.

   MEMBER: So why do you think that's relevant if you going to look to the future when you go back in 2015 and there's been change in Sri Lanka there's a new government why do you think that that profile that you've explained to me is going to put your life in danger.

   INTERPRETER: General election will be coming really soon and, ah, then there, ah, elections are held, ah, the former President will become the Prime Minister.

   MEMBER: Because I'm looking at what you've told me and I'm looking at what is likely to happen to you if you return to Sri Lanka that's what I have to do.

   And, ah um, you don't um have a profile that is of any interest to the authorities ah from what I can gather, um, and it’s unlikely that you'll be of any interest when you arrive a-and the CID the army and the security people, ah, are unlikely from what you've told me to have any specific interest on you.-1 don't accept there is no evidence to suggest that you will be on a watch list and there is no evidence that you're a Tamil activist um a-and er your name was changed in 1987 your father's past away um So y-y-you would be likely to be treated as a failed asylum seeker who came to Australia trying to find a better life and was unsuccessful.

   This is your opportunity to comment on my observation.

   INTERPRETER: I came here in a boat ah giving my life thinking it doesn't matter whether I die here in the sea or if I die ... In Sri Lanka.

   Ah there is something [Inaudible] that has happened to me and I'm the person who knows what I went through.

   Um I have threats and because through those threats I feel if I go back again I will ah I will feel very helpless .

   MEMBER: Okay, okay

10. The topic of the JVP was also addressed on pp.15 to 17 of the transcript, as follows:

    MEMBER: Okay. So how long were you a member of the JVP, or how long sorry were you involved with the JVP?

    INTERPRETER: 1.5-1.5years.

    MEMBER: And then were you working during the day in the grocery store?

    INTERPRETER: Yes.

    MEMBER: So um what happened after 1.5 years?

    INTERPRETER: Then in 1989, 20th of January four-four people came to my house in the night ah they came in a white van they tied my eyes and took me away.

    MEMBER: Why do you-what-whats ah um the 20th of January how do you remember that date, that was some time ago?

    APPLICANT: I-I remember this where as my burn in my legs that day my burn in my leg that's why I remember that that date.

    MEMBER: Okay, okay well explain to me about the-you were abducted from your home.

    Why were you? What?-Who? Who abducted you?

    INTERPRETER: I don't know who that is.

    MEMBER: How long were you abducted for?

    INTERPRETER: For 14 days I was in a dark room.

    MEMBER: What did they want from you?

    INTERPRETER: Ah I was assaulted by others in this dark room and they were questioning me as they ah “who gave you the, ah who gave this letters, who took the leadership for you to distribute this letters.”

    MEMBER: So they were asking questions about the JVP involvement? About your JVP involvement?

    INTERPRETER: Yes.

    APPLICANT: Yes.

    MEMBER: 14 days is a long time what would they what else would they doing during that time?

    INTERPRETER: They assaulted me insulted me and the there was some other people some younger other people who were there they are they burned them. They killed some of them.

    MEMBER: What did you tell them?

    INTERPRETER: I said that I don't know, 1-1 said I don't know who the leader is.

    APPLICANT: The leaders ... the leaders.

    INTERPRETER: I said I don't know who the leader is.

    MEMBER: Is that was that the truth or not or did you did you know the leaders?

    APPLICANT: No I don't know I never saw the leader.

    MEMBER: So you were telling them what you knew.

    INTERPRETER: Yes.

    MEMBER: So they are asked you who gave y-you the letters and you said “I don't know who gave me the letters” and you actually didn't know who gave you the letters?

    APPLICANT: So I actually don't know.

    MEMBER: So where did you get the letters from?

    APPLICANT: I get some, someone one some persons received them for me, then I gave those to them.

    MEMBER: So the person who gave you the letters, I don't understand you were given the letters by someone but you don't know who gave you the letters or whom what you are you trying to say you don't know who produced the letters?

    INTERPRETER: I know that person but I don't know the leader.

    MEMBER: Okay, so you know the person who gave you the letters but they weren't very important it's the leaders who the you don't know?

    INTERPRETER: Yes that-you are correct.

    MEMBER: Okay because from what I understand you hadn't been involved in the JVP for very long, did you have a lot of knowledge about the party at that stage?

    INTERPRETER: Um, no I didn't not know much about it but I was a young person ah I helped them collect [Inaudible] school that we were trying to ah create in the country I wanted then to ah ah change the way they were thinking about the leaders and about ah t-the races.

    MEMBER: So I just need to know more about this abduction because this sounds like a-a-a something that would have been very traumatic. um 14 days in a dark room and you were beaten and tortured and your legs were burnt. Is that right?

    APPLICANT: Yeah that's right.

    MEMBER: But ah did you ah identify anybody?

    APPLICANT: No I did not identify anybody, anybody from the dark room.

    MEMBER: And, um, did you report this to the police?

    APPLICANT: Yes, I report after I came back h-h-home I went to the police centre was.

    INTERPRETER: They did not ah take any action they did an [Inaudible] report but they did not um ...

    MEMBER: What?

    INTERPRETER: Do very much.

    MEMBER: But you-there was a report made?

    INTERPRETER: They did not, ah accept my um accept what I said they did not ah want to make a ,they did not want to take any action because they said this is something that is done with the ah holding party at the time.

    MEMBER: Okay, so how did-you how were you released?

    INTERPRETER: They ah then they covered cl-closed covered my eyes put into a van and they took me and then they took off my ah ah whatever they eh the cover the things that they covered my eyes with and they just ah put me out me out and threw me out.

    MEMBER: Um ...

    INTERPRETER: From the van.

    MEMBER: We, were you the only person taken?

    INTERPRETER: Yes.

    MEMBER: When you were working with the JVP how many people were working in your organisation?

    INTERPRETER: Thousands of them.

    MEMBER: In the Colombo?

    APPLICANT: Yeah.

    MEMBER: So, explain to me why you were abducted ah and not anyone else?

    INTERPRETER: They actual did abduct them as well but most of them were killed.

    MEMBER: So how do you know about that?

    INTERPRETER: From papers.

    MEMBER: So you talking about your own experience or you talking about things you have read in the papers?

    INTERPRETER: Ah it's about me but this is ah this time even on the TV ah or even on the papers ah they were always showing how people have been ah abducted as well as how people have been burned so this was [Inaudible] were so much things like that was happening everywhere.

    MEMBER: So um when you were released did you tell anyone in the JVP what had happened to you?

    APPLICANT: Nothing, No.

    INTERPRETER: No.

    MEMBER: Why not?

    INTERPRETER: Ah because my mother did not leave room for me to ah go ahead with anything because she was really depressed ah she was totally gone because death was nearer where so many young people were being killed.

    MEMBER: So what you are saying; did-did you stop all involvement in politics at that stage?

    INTERPRETER: Yes, you are correct.

    MEMBER: So I just need you to explain to me why you were abducted because it-it-it seems to me that your involvement was quite low level it wasn't, ah you weren't an organizer or you weren't actively involved in the JVP you were handing out letters and you were putting up posters. Why would somebody abduct you and for 14 days and question you and torture you?

    INTERPRETER: Ah yes, actually though it feels like a distributing of the pamphlets like a small thing it's one of the major things that we could do it that era because to that distribution of letters we managed to ah to ah rule the government that was there, put fear into them and we did it in a such a way that we even brought [Inaudible] fear to them we did not have any um ah weapons, we did not use any weapons.

    MEMBER: You mentioned ah it in the submissions I've been provided that uses the word arrested, were you arrested, what I mean by arrested is by the police?

    INTERPRETER: Okay, no what I mean was ah arrested is by abducting me and keeping me for 14 days.

    MEMBER: Okay, have you ever been arrested or convicted and charged?

    INTERPRETER: No, no.

    MEMBER: Have you had any trouble with the authorities?

    APPLICANT: No.

    MEMBER: So what happened after a-you stopped um did you go back to working in your grocery store?

    INTERPRETER: Yes yes it's in my house yes I did.

    MEMBER: Do you no ah why you were released?

    INTERPRETER: Ah, yes because ah my mother's sister ...

    Is a is a captain, ah the sisters sorry sisters husband is a captain, his name is Captain Summer, so he and a crew ah in the Navy Army ...Army ...

    So through him they managed to speak to the higher above authorities and talk about me and got me released.

    MEMBER: How do you know this?

    INTERPRETER: My mother is the person who told me that.

    MEMBER: How does she know them?

    INTERPRETER: Um ...

    ... okay my mother has told me because he was working ah for the Ar ...

    APPLICANT: Army

    INTERPRETER: Army

    MEMBER: Okay because from what I understand is that you were abducted unknown men taken away for 14 days your mother stayed at home how did she know where you were?

    INTERPRETER: Well that was the year where young people were abducted and ah killed.

    Than my mother because of that my mother started searching for me.

    MEMBER: Um, were you rescued by the Sri Lankan Army?

    INTERPRETER: Ah no my mother said that she told ah higher in the Army, ah so I believe because of that I was free but up to now he has not told me about that.

    MEMBER: Okay, so what happened next in your life?

    INTERPRETER: Um I was a sad with this person, ah than I was supporting my mother and working in the shop.

    MEMBER: Did you join any other political party?

    INTERPRETER: No I nev-never, I didn't join anything any party.

    MEMBER: So why did you end up coming to Australia in 2012?

    INTERPRETER: In 2009, [inaudible] ended the civil war.

    Ah, I was older by than because with that ah the-the problem that was in the country especially the-the races the-the between the races was over.

    MEMBER: So you were pleased about that?

    APPLICANT: Yeah.

1. I accept the first respondent’s submission that the Tribunal was not required to raise country information with the applicant and that the reference to the changed political landscape was, in substance, country information falling within s.424A(3)(a) and that this was an exhaustive statement of the obligation to invite comment on information consistent with s.422B. It follows that the reference to the changed political landscape was not an issue of the kind falling within SZBEL and that there was no failure to comply with s.425.

2. Further, as is apparent from the material quoted above, it is clear that the Tribunal did raise with the applicant the changed landscape in a manner that made clear it was a live issue consistent with the reasoning in SZTKE referred to above. 

3. I also accept the first respondent’s submission that the delegate’s reasons referred to country information about Sri Lanka at court book 137 to 138 and that accordingly it was obvious that country conditions in Sri Lanka was a matter in issue before the Tribunal and that the applicant had an opportunity to put what he wished concerning that subject. In fact the applicant did address the changed country conditions in his submissions at court book 167 to 187 as well as the issue being raised in the transcript as referred to above.

4. Accordingly no breach of s.425 is made out in relation to the positive change in the political landscape referred to in para.51.

5. In relation to the second matter said to be a contravention of s.425 the applicant relies upon the fact that the delegate accepted that the applicant was abducted and had his feet burnt in 1989 due to his political activities for the JVP party.  It is clear from the passages in the transcript referred to above that the Tribunal explored with the applicant his involvement with the JVP and that this was a live issue before the Tribunal.  Relevantly the Tribunal also said at p.3:

   The Tribunal is independent from the Department of Immigration and Border Protection.  I am looking at your application from scratch, from the beginning.  I am not bound by the Department’s decision but I must apply the same law so this is your opportunity to present all relevant evidence.  I will be asking you questions, and you’ve already provided information to the Department but it’s important that you give me ….. evidence in support of your claim in your own words.

   I’ve got a copy of the delegate’s decision that I was provided with and I was provided with your application.  The delegate had some concerns about your evidence and found aspects of it – your answers evasive and didn’t accept all of your claims.  So part of the process is for me to ask you questions and assess your credibility and assess the credibility of your claims.  Okay.  Any questions at this stage?

6. I accept the first respondent’s submission that it is apparent from the transcript that the applicant was questioned at length by the Tribunal concerning the JVP to identify that as a live issue and sufficient to comply by SZBEL at [47]; see also[ 47] and [48].

7. I accept the first respondent’s submissions that no breach of s.425 is made out in relation to the claims concerning the JVP and assessment by the Tribunal of the applicant’s credibility in that regard. Accordingly ground 2 fails to make out any jurisdictional error.

8. In relation to ground 3, the applicant contended that the Tribunal failed to apply the correct test because it made no findings as to whether in fact the incident occurred or findings if it had a doubt as to whether the 1989 incident had occurred.  The applicant referred to Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at 33:

   33. The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391 and 432 ; 87 ALR 412 at 419–20 and 450–1 (Chan); Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571–3 ; 144 ALR 567 at 575–8 ; 48 ALD 481 at 489–91 (Guo).

9. The applicant referred to the requirement that the fear of persecution must be well-founded and that the appropriate question is whether there is a real chance that the refugee will be persecuted as stated in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389; see also Dawson at 407, McHugh at 429, and Minister for Immigration and Ethnic Affairs v Guo Wei (1997) 191 CLR 559 at 572 per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ.

10. The applicant also contended and it was well-established that unless the Tribunal had no real doubt that his findings were correct in relation to whether or not an event had occurred, it must consider the possibility that his findings might be wrong.  The applicant referred to Minister for Immigration and Multicultural Affairs v Rajalangam (1999) 93 FCR 220 at 62 and 67:

    62. In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

    …

    67. In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT's reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at CLR 271–72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 ; 115 ALR 1 at FCR 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

11. The applicant contended that the reference in para.38 of the Tribunal’s reasons as referred to above in expressing surprise was a failure to make an actual finding as to whether the Tribunal rejected the claim and that it was necessary for the Tribunal to make a finding as to whether the incident had occurred and to evaluate, if it had doubt, the position if the Tribunal was wrong in relation to the assessment of whether the applicant would attract persecution in the future.

12. I accept the first respondent’s submission that the Tribunal did not make a finding that the incident in 1989 did not occur, but rather was identifying a doubt about the credibility of the applicant’s evidence in that regard.  I accept the first respondent’s submission that in light of the Tribunal identifying the correct test at court book 203, para.15, and the findings referred to in para.52, it is clear that the Tribunal correctly applied the test taking into account the doubt or possibility that the incident in 1989 had occurred.

13. There is no substance in the contention that the Tribunal failed to apply the correct test.  Accordingly, ground 3 fails to make out any jurisdictional error.  The amended application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 26 October 2015