AYU16 v Minister for Immigration & Anor - [2018] FCCA 2890

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYU16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2890

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to assess an integer of the applicant’s claim – procedural fairness – whether the Tribunal failed to consider the risk of harm to the applicant for the expression of his political opinion – whether the Tribunal failed to consider that the applicant may fall under the category of vulnerable persons – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 420, 425, 476

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs [2003] FCAFC 184; (2003) 236 FCR 593

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802;

(2001) 194 ALR 244

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263; (2004) 144 FCR 1

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA

26; (2003) 197 ALR 389

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63; (2006) 228 CLR 152

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 [187]

Re Ruddock & Anor; Ex parte Applicant 154/2002 [2003] HCA 60; (2003) 201

ALR 437

Minister for Immigration & Multicultural Affairs v Respondents S152/2003

[2004] HCA 18; (2004) 222 CLR 1

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83

ALJR 1123

SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592

Ram v Minister for Immigration and Ethnic Affairs [1995] AATA 381; (1995) 57

FCR 565

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4;

(1997) 190 CLR 225

Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1; 187 ALR 574;

76 ALJR 667

S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71;

(2003) 216 CLR 473

Re Minister for Immigration and Multicultural Affairs; Ex parte

Durairajasingham, [2000] HCA 1; (2000) 168 ALR 407

SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089;

(2015) 233 FCR 451

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240

CLR 611

Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Applicant:

AYU16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 999 of 2016

Judgment of:

Judge Nicholls

Hearing date:

1 March 2018

Date of Last Submission:

8 March 2018

Delivered at:

Sydney

Delivered on:

12 October 2018

REPRESENTATION

Solicitors for the Applicant:

S Hodges of Hodges Legal

Solicitors for the Respondents:

J Strugnell of Minter Ellison Lawyers

ORDERS

The application made on 19 April 2016, amended on 12 October 2016, and further amended on 1 March 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 999 of 2016

AYU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 April 2016, amended on 12 October 2016, and further amended on 1 March 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 23 March 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Fernando Rodrigo made on 13 August 2016 annexing a transcript (“T”) of the applicant’s hearing before the Tribunal. [I note that the transcript of the Tribunal hearing uses both “I” and “A” to indicate a response to the Tribunal member’s question. I proceeded on the basis, except where the contrary is evident, that this was the applicant’s evidence as given through the interpreter at the hearing. The Minister did not object to the applicant’s reliance on the transcript despite this issue.]

Background

The applicant is a citizen of Sri Lanka who arrived in Australia on 10 August 2012 as an “unauthorised maritime arrival” (CB 37 to CB 38). The applicant applied for the protection visa which was received by the Minister’s department on 3 December 2012 (CB 25 to CB 96 and CB 101). The applicant was assisted by a firm of solicitors in making his application (CB 72).
The applicant’s claims to fear harm were contained in a Statutory Declaration dated 27 November 2012 attached to his protection visa application form (CB 77 to CB 80). The applicant claimed to fear harm on the basis that he was a Tamil fisherman and a “member of the committee of the fisherman in Mannar” (“the Fishermen’s Association”) who “were chosen to talk to the army to lift the [fishing] restrictions” ([4] at CB 78). Following a meeting between the committee members and members of the Sri Lankan Army (“SLA”) in 2008, the applicant claimed to have experienced problems with the SLA ([5] – [8] at CB 78).
The applicant claimed that he was forced to resign from the committee in November 2008 and although a “few days” later his house was “ransacked” by SLA officers, the applicant “did not have any particular problems from 2008 to 2011” ([9] – [11] at CB 79). The applicant claimed to have been approached in 2011 by members of the SLA and told that there were “charges pending against” him concerning the meeting in 2008. Following a Tamil National Alliance protest in 2012, in which the applicant did not participate, he left Sri Lanka for Australia ([12] – [15] at CB 79).
The applicant was invited to, and attended, an interview with the delegate on 20 May 2013 (CB 101 to CB 106 and CB 124.4). The delegate refused the application for the visa on 7 August 2013 (CB 110 to CB 142).
The applicant applied for review to the Tribunal which was received on 16 August 2013 (CB 143 to CB 149). The applicant appeared at a hearing before the Tribunal on 18 November 2015 (CB 228 to CB 229). The applicant’s then representative provided further documents to the Tribunal via email on 29 September 2015 (CB 201 to CB 210) and 25 November 2015 (CB 235 to CB 257). The documents contained in the email dated 25 November 2015 included another Statutory Declaration made by the applicant dated 23 November 2015 (CB 247 to CB 251).
The Tribunal affirmed the delegate’s decision on 23 March 2016 and the applicant was notified by email sent to his then representative on the same date (CB 261 to CB 295).
On the evidence before the Court, The Minister’s written submissions provide a fair and accurate summary of the relevant Tribunal decision and for the purposes of this judgment I adopt the relevant paragraphs as follows ([6] – [8] of the Minister’s written submissions):
“[6] The Tribunal set out a lengthy summary of the evidence given by the applicant at the hearing (CB 279–286: [50]–[76]), and the content of post-hearing submissions and additional material (CB 284–286: [77]–[91]). The Tribunal rejected the applicant’s claims on account of adverse credibility findings (CB 287: [93]). The Tribunal made the following key findings:
(a) it accepted that the applicant is a Catholic Tamil fisherman from Sri Lanka's Northern Province, but noted that he made no claims to fear harm in relation to his religion, and was not satisfied that he would face a real chance of persecution for that reason (at [95]);
(b) it was not satisfied the applicant would face a real chance of persecution for reason of any help he gave or was perceived to have given to his grandfather in his grandfather’s campaign for public office (CB 288: [96]), on account of having been a fisherman (CB 288: [37]) or his involvement in the fishermen’s association (CB 288: [98]–[99]);
(c) on the basis of inconsistent evidence, it did not accept the applicant was taken to a navy camp for interrogations or warnings (CB 288: [101]);
(d) it found the applicant continued to fish with full permission from the authorities until he came to Australia, and gave weight to this factor in its overall findings (CB 289: [103]);
(e) it did not accept that he was placed on reporting conditions by any authority in Sri Lanka or that the authorities came looking for him after he left Sri Lanka (CB 289: [104]);
(f) it was not satisfied that the applicant faced a real chance of persecution for reason of having sought asylum abroad (CB 289: [107]); and
(g) it found that the applicant’s claims about distress to his family if he is removed from Australia is speculative and did not give rise to a real chance of the applicant facing Convention-related persecution (at [115]).
[7] In relation to the applicant’s illegal departure, the Tribunal was not satisfied the applicant would be suspected of involvement in people smuggling (CB 289: [108]) and found that any experiences or penalties on return would not amount to serious harm and that the applicant would face a ‘law of general application’ (CB 289: [109]–[111]).
[8] As a result, the Tribunal concluded the applicant did not satisfy the refugee criterion (CB 291: [117]). For the same reasons, the Tribunal concluded the applicant did not meet the complementary protection criterion (CB 292: [125], CB 294: [134]). In this context, the Tribunal made specific findings that the applicant would not face a real risk of significant harm on account of poor prison conditions (CB292: [126], CB 293: [130]).”

The Application to the Court

At the final hearing, the applicant and the Minister were represented by their respective solicitors. The applicant had filed an amended application on 12 October 2016. At the final hearing, the applicant pressed his amended application and sought, and was granted, leave to further amend the particulars to ground four of the application. The Minister was given the opportunity to file written submissions in relation to the further amended ground four following the hearing. The Minister filed written submissions on 8 March 2018 (“the Minister’s second written submissions”). Although given the opportunity, the applicant did not file any written submissions in reply.
At the final hearing the applicant also indicated that grounds one and five of the amended application were not pressed, and that he was relying on his written submissions for grounds three, six and seven. [I note that there was no ground two in the amended application.]
The grounds, as pressed in the further amended application to the Court are in the following terms:
“Ground 3
The Tribunal failed to assess an integer of a claim made by the Applicant.
Particulars
(i) At [53] the Applicant stated that he was ‘also the head of a sports club’ when discussing the position he held in the fishermen’s union. This claim relates to a particular social group which was not assessed.
Ground 4
The Tribunal failed to show procedural fairness to the Applicant.
Particulars
(a) Attributing failure to answer questions to the applicant rather than miscommunication.
(b) Not asking questions about matters of concern.
(c) Criticising the applicant during the hearing for not raising issues earlier.
(d) Putting to the applicant that statements were inconsistent when that was not the case.
(e) Over reliance on questions to which the applicant could not reasonably be expected to know the answer.
Ground 6
The Tribunal failed to consider the likely harm the applicant could suffer due to his conduct in expressing his political opinion explicitly without fear and the likely harm the applicant could face if he expresses his political opinion explicitly as he did in the past.
Particulars
(i) The relevant excerpt extracted off the transcript of the Tribunal hearing record
M     So what is your experience from the army?
A      It was the fear that I had from the fact that I had opposed them while I was in the fishermen’s association.
M     I asked you what your experiences were from the army and you tell me about the feeling you had.
A      Because I used to speak against them among the people, that they don’t allow us to work in freedom, their concern was why is this fellow talking against us why is he doing this because of this tension wherever they see me they would go ‘this is the person, he is the one in the forefront’, because of this I had been threatened.
M     And you follow instructions and take your cues from the leader?
A      The leader may say don’t talk about these matters with the navy, but my other committee members may say look this is peaceful times so why are we constrained like this, why do we need passes. So in a situation like that and I would state that.
I        I would state what the committee would say.
M     So you would disregard your leader?
A      Yes.
…
A      They treated me like the LTTE, LTTE used arms to defend their positions whereas I was using my mouth to represent my people, I requested them to let my people work freely.
(ii) It has been held that an applicant’s conduct in bringing legal actions to prevent exploitation of the poor was ‘arguably the expression of political opinion by the applicant’. See: Devarajan v MIMA [1999] FCA 796 (Moore J, 16 June 1999) at [26]. On the basis of the relevant excerpts of the transcript referred above, the applicant’s conduct in our case could arguably be an expression of political opinion which has not been sufficiently explored.
(iii) It is submitted that the Tribunal failed to consider the real chance of the applicant being exposed to harm due to an attribute/behaviour. Any implied expectation that the applicant could modify and or supress his behaviour/conduct in order to avoid being harmed would be erroneous.
Ground 7
The Tribunal appears to have failed to consider the fact that the applicant may fall under the category of ‘vulnerable persons’ as the Tribunal was aware and considered in its findings that the applicant was previously treated for mental health issues [93] and [247].
Particulars
(i) The Tribunal at [53] states,
…His responses were generally vague and off the point
(ii) The Tribunal at [55] states,
…and then, oddly, he said, ‘Nobody argues with the leader’ … ‘Overall, his evidence here struck me as confused.’
(iii) The Tribunal at [57] states,
…[the applicant’s] evidence continued to be vague and confused.
(iv) The Tribunal at [60] states,
…Again, he seemed to be digressing away from the point of my questions…
(v) The Tribunal at [93] states,
…I find there are a number of significant inconsistencies in this case and I am satisfied, after detailed consideration of the evidence, that they are not due to conditions beyond [the applicant’s] control.
(vi) The applicant an asylum seeker, had stated in his entry interview at [8] that he was the carer of his aunt’s daughter (whose father is disabled) and his sister’s son (whose father is mentally disabled).
(vii) When considering the applicant’s claims and his responses to the Tribunal, it is submitted that the Tribunal failed to consider that the applicant’s responses could have been affected due to having been treated for mental health issues and therefore beyond the Applicant’s control. The effect of having consumed medication for mental health issues in the past ought to have been considered.”

Consideration

Ground three of the further amended application asserts that the Tribunal failed to assess an integer of the applicant’s claim to fear harm.
The particulars to the ground and the applicant’s written submissions seek to explain this ground with reference to the Tribunal’s decision record at [53] (at CB 280) which is as follows (and see also at T6.4):
“I asked [the applicant] for more detail about his role in the fishermen's union. His responses were generally vague and off the point. He said he was a ‘deputy leader’ of the union and when I asked him to tell me by what process he became leader, he referred to his personal ‘qualities’. When I asked him-to describe the process of gaining appointment to a leadership position in the union, he merely said, ‘I was outspoken.’ When I asked him again to tell me the steps by which someone gets to become a leader of the union, [the applicant] said he was also the head of a sports club. I put to him that he seemed incapable of giving me any detailed insight into the process by which he became ‘deputy leader’ of the union; in response, he merely said, ‘Because I was pro-active.’ I asked him how many deputy leaders there were in the union and he said, ‘Just one.’ Overall, he was unable to identify any process by which the union appointed its office bearers, or any process by which persons interested in such positions nominate or are selected for them; his evidence struck me as vague, and his vagueness on the subject of the means by which he became the deputy leader of the union struck me as incongruous, given that according to his claims, he must have knowingly undergone some selection process or other.”
[Emphasis added.]
In short, at the hearing, as the Tribunal noted, the applicant told the Tribunal that he was also (in addition to being deputy of the Fishermen’s Association), head of a “sports club”.
The Tribunal’s error was said to be that it failed to consider the applicant’s claims to fear harm on the basis of his being a member of a particular social group of persons who “hold leadership positions in several associations” (page 5.3 of the applicant’s written submissions).
It is the case that the Tribunal is only required to consider a claim to fear harm, as presented by an applicant in evidence or submissions which is expressly made or clearly arising, or a substantial, clearly articulated argument relying on established facts (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
The difficulty for the applicant in relation to ground three, is that on the evidence before the Court, it cannot be said that the applicant ever made any express claim to fear harm or injury because of his membership, or “leadership”, of a “sports club”. Nor did his being a member, or leader, of “several associations” form a part of his claims to fear harm.
Further, any such claim cannot be said to clearly arise from the circumstances presented. As the Minister submitted, the applicant’s reference to being the head of a “sports club” was not part of any substantial or clearly articulated argument to fear harm as a member of a particular social group.
Any plain reading of the transcript of the hearing before the Tribunal, which is consistently reflected in the Tribunal’s report of what occurred at the hearing in its decision record, reveals that the Tribunal questioned the applicant about the process by which he became deputy leader of the Fishermen’s Association (see T6.3).
At best, the applicant’s reference to the “sports club”, was put in an attempt to explain how he became the deputy leader of the Fishermen’s Association. There is nothing to even indicate that the applicant made any claim to fear harm because of his “sports club” leadership, or because he was a member of a particular social group of people who “hold leadership positions in several associations”. Ground three is not made out.
Ground four asserts that the Tribunal denied the applicant procedural fairness. The particulars were ultimately amended as set out above at [12].
The applicant’s solicitor’s oral submissions in respect of this ground were lengthy. In context, I understood the assertion of error on the part of the Tribunal to be a breach of s.425 of the Act. Specifically, that the applicant was denied a meaningful opportunity to present his evidence at the Tribunal hearing.

Given the nature of the applicant’s solicitor’s oral submissions on this ground, and the difference between the oral submissions and the general assertions in the applicant’s written submissions, it is convenient to address the ground with specific, and separate, reference to each of the particulars as set out above.
The submissions before the Court in relation to particular “a” focused on the transcript of the Tribunal hearing at T6. As set out above, at the hearing, the Tribunal attempted to extract from the applicant the process by which he had become the deputy leader of the Fishermen’s Association.
I pause to note that the applicant’s claims to fear harm were based on his activities as a Tamil fisherman, and his claimed involvement in the local Fishermen’s Association.
At its highest, in his oral submissions before the Court, the applicant’s solicitor made plain that the “crux” of this “case” before the Tribunal was that the applicant was not only a member of the Fishermen’s Association, but a deputy leader of it.
In this light, it was not unreasonable for the Tribunal to focus on, amongst other things, the process by which the applicant came to have achieved a position in the leadership committee of the Fishermen’s Association.
The applicant’s solicitor’s assertion before the Court was that, with reference to the transcript of the Tribunal hearing (particularly at T6 to T7), the applicant did not understand the Tribunal’s question of: “How did you get to be deputy leader [of the Fishermen’s Association]”. One of the complaints in the applicant’s solicitor’s oral submissions could have been understood as being that the Tribunal did not explain, or rephrase, this question. Rather, it continued to ask the same question, and subsequently in its decision record, the Tribunal placed weight on a lack of coherent response from the applicant.
The relevant part of transcript is in the following terms (T6.1 to T6.7):
“M: That was the association where you were a member of?
A: Yes, I held office as a deputy leader there were others like secretary and other positions my brother was a member.
M: How did you get to be deputy leader?
A: I had the ability to talk and approach people.
I: I had the ability to be eloquent and articulate and also a person who can have relationship with others
M: That's neither here nor there. You have all the qualities but how did you get to be the leader.
A: Because I was a person who was decisive in the way of talking.
M: I am asking one more time how did you get to be the leader?
A: Sports club also I was the head also a person who was involved with extracurricular activities even during the school days.
M: So this association is like a union of fishermen?
A: Yes
M: I asked you three times to tell me the process by which you became a leader you kept talking about qualities you haven't given me any insight into the process?
A: It was mainly because I was always proactive and was always there when anything was done I was in the forefront to get people together and there was a reputation that Jeyaraj was very efficient and capable.
M: How many deputy leaders were there?
A: One leader, deputy leader and five members seven people.
M: Who was the leader?
A: We call him Anthony, his name is Anthony Pakiam…and it was subsequently changed I have the documents.”
However, in the same oral submissions before the Court, the applicant’s solicitor submitted, “…clearly what the member is fishing for is what was the process by which the members elected you…to be in the committee”.
Given that observation, and on a plain reading of the transcript of the hearing, it is difficult to see how the applicant’s complaint now could be made out.
There was no lack of clarity, nor was there any ambiguity in the Tribunal’s questions to the applicant. Ultimately, the Tribunal squarely put to the applicant (T6.5):
“I asked you three times to tell me the process by which you became a leader, you kept telling me about qualities and haven’t given me any insight into the process”.
There is nothing, in the transcript, from the applicant to indicate to the Tribunal that he did not understand the Tribunal’s questioning in this regard. For the sake of completeness, I also note that before the Court, the applicant confirmed that he was not seeking to press any complaint about inadequate interpretation at the Tribunal hearing.
Particular “a” to ground four is not made out. On the evidence, it was reasonably open to the Tribunal to find that the applicant’s answers to this question were “vague”. The applicant was not denied a meaningful opportunity to give his evidence. The Tribunal’s questioning, and the ultimate proposition put to the applicant, was clear. The applicant’s inability, or failure to answer the question is not, of itself, and in all of the circumstances, evidence of a failure to afford procedural fairness on the part of the Tribunal.
Particular “b” to ground four complains that the Tribunal did not ask about “matters of concern”.
In oral submissions before the Court, the applicant’s solicitor made lengthy references to the transcript of the Tribunal hearing and quoted extensively from it. These references were accompanied by a running commentary by the applicant’s solicitor of the questions and answers in the hearing. None of these references, or “commentary”, can be properly understood as identifying matters of concern not addressed by the Tribunal. Nor, importantly, did the applicant’s solicitor satisfactorily identify the specific “matters of concern” about which he otherwise says the Tribunal did not ask questions.
I should note that at the hearing before the Court, the applicant’s solicitor made reference to the Tribunal having stated to the applicant at the “introductory part of the hearing”: “I will ask you questions of concern to me. You answer, and then you will have an opportunity to speak”.
I cannot see any such statement in the introductory part of the Tribunal hearing, or for that matter, elsewhere in the transcript that the applicant has put before the Court.
In all, particular “b” to ground four is not made out. Before the Court, the applicant’s solicitor made various references to procedural fairness. In that context, I note that on the evidence before the Court, the “issues” in the review (with reference to s.425 of the Act) which were not “live issues” as a result of the delegate’s decision were all discussed at the Tribunal hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).
Particular “c” to ground four complains that at the Tribunal hearing, the Tribunal criticised the applicant for not raising issues at an earlier time.
Again, in submissions, there was no clear identification of any relevant part of the transcript where this was said to have occurred.
In his second written submissions (at [12]), the Minister suggested that this may have been an attempt by the applicant to refer to the following exchange (T8.8):
“A: There are 32 committees in Mannar and these committees are represented by us.
(Disturbance)
M: (unclear) ... I don't understand what you are doing at the moment.
A: I have my Identity Card, that indicates I was one of the representative.
M: That the membership card (unclear, disturbance) ok leave it back in your bag. If that is readily available information, and you want me to consider it, it is the kind of material that we suggest that you submit before the hearing.”
Again, even if this was what particular “c” sought to refer to, there is nothing in this exchange to suggest any failure of procedural fairness on the part of the Tribunal, or a lack of meaningful opportunity to the applicant to present his evidence or arguments. The applicant made reference to a Fishermen’s Association identity card to support his claim that he was a member of the Fishermen’s Association. The Tribunal accepted that the applicant was a member of the Fishermen’s Association. Particular “c” to ground four is not made out.
Particular “d” to ground four asserts that the Tribunal put to the applicant that he had made inconsistent statements, when that was not the case.
Again, it is difficult from the oral submissions before the Court to discern any specificity in the explanation of this complaint beyond what is set out in the transcript at T13 to T14.
Relevantly, the following exchanges occurred at the Tribunal hearing (T13.7 to T 14.7):
“M: I mean today when I was asking you about what happened in 2008 and the time you left the country all you were talking about was the finger pointing and then being called into reporting every month to the authorities. So far you haven't mentioned this episode either if the priest did or did not attend an interrogation you were called in for, today when you were prompted to talk about charges in interrogation it didn't come to mind.
A: It was in my mind I was waiting for you to ask me the question, father coming and meeting me.
M: And I asked you to talk to me about what happened to you at that time nothing happened except the reporting condition and you said that's correct.
A: I didn't understand, it did come to my mind about the priest. But I thought I would wait for you to raise that question.
M: OK I specifically raised it because you have given contradictory information in your sworn statement you gave in your evidence to the Delegate whether the priest accompanied you to that meeting to the camp. The Delegate highlighted you contradicted your evidence about that episode is similar to that in 2008 so which is true did the priest come with you to that interrogation or not?
A: Yes he came and he gave a promise that I do not indulge in such activities anymore.
M: OK that's what you said to the Delegate but in your statement of claim your sworn statement that the priest was not allowed in and you said for him to wait for you. That information is contradictory the Delegate highlighted on that occasion the priest could not bear witness to the discussion, could not be a participant to the discussion.
A: The priest was asked by them to wait outside till they finish investigation and let me come out.
M: That's just changing the story back to what is in the stat dec and denying what you said to the delegate. It is also denying what you just said to me earlier that he was in the conversation and that he gave an undertaking.
A: what I said was that when they took me to carry out the investigation, the priest came in search of me. That's what I've said there.
M: In your statutory declaration you actually said you asked the priest to accompany you, not that he came in search of you. In your evidence to the Delegate you also talk about the priest accompanying you to the military camp and into the interrogation.
A: No
M: What you said to me is different from what you said in the statutory declaration, can we resolve this discrepancy?
A: Four years later in the course of time that could have been affected.”
Before the Court, the applicant’s solicitor’s complaint was that it was not open to the Tribunal to put to the applicant that he had made inconsistent statements about whether he was accompanied by the priest to an interrogation at the SLA camp, as between his Statutory Declaration of 27 November 2012 and what he told the delegate.
The applicant’s solicitor drew attention to the following. One, in his Statutory Declaration, the applicant relevantly stated ([7] at CB 78):
“I asked the priest of our church to accompany me to the camp. The priest was not allowed in however I asked the priest to wait for me. At this time the army officers dismissed me as well. They asked me to leave.”
Two, the delegate stated in her decision record (CB 130.4):
“When asked what the consequence of him being vocal with the SL Navy and what kind of threats he received from them he responded that once when he was going back from his office that ‘they came in a white van, stopped the van and pulled me. I pushed them away and went to the church father and told him that they targeted me and wanted me to resign from the association.’ The applicant then asked the father to come with him to the camp so that he could tell them that he decided not to work with the Fisherman association any more. The applicant went on explaining when they came to the camp that the father vouched for him telling them that he will take care of the applicant and that he will ensure that the applicant will be with him at the church most of the time.
It was put to the applicant that in his PV application he claimed that the priest who came with him to the camp was not allowed in and he asked the priest to wait for him outside. The applicant did not provide any response to this inconsistency.”
The thrust of the applicant’s solicitor’s submissions before the Court was that there was no inconsistency between what the applicant relevantly put in his Statutory Declaration of 27 November 2012, and what he told the delegate.
I note there is no transcript of the applicant’s interview with the delegate in evidence before the Court. The applicant, therefore, relied on the delegate’s decision record to make out his assertion that there was no inconsistency.
On the evidence, it was reasonably open to the delegate to find that there was an inconsistency. In the Statutory Declaration, the applicant’s account, when read fairly, is that the priest accompanied him to the SLA camp, but was not allowed inside, and the applicant asked him to wait outside for him.
Before the delegate, the applicant (on the delegate’s account) “explain[ed]” that the priest “vouched for him”. That is, the priest vouched for the applicant with the Sri Lankan authorities.
It was reasonably open to the delegate to find that the two accounts were inconsistent. The applicant submitted that at most, what the applicant told the delegate contained “more details”, and not was contradictory evidence.
However, it was reasonably open for the delegate to understand the applicant’s account in the Statutory Declaration to be that while the priest accompanied him to the camp, he took no role in speaking to the army officers. It was the applicant who, on what was written in the Statutory Declaration, told the priest to wait outside.
Yet the account given to the delegate by the applicant, as reported in the delegate’s decision record, was that the priest “vouched” for the applicant. There was no reference in the delegate’s account of the applicant’s evidence to the applicant telling the priest to wait outside. The clear statement was that the priest took an active role in speaking to the army officers.
In any event, it is the Tribunal’s decision, not the delegate’s decision, which is the subject of judicial review in the current case.
The Tribunal’s finding that the applicant gave inconsistent accounts between his Statutory Declaration, what he told the delegate, and what he told the Tribunal, was reasonably open to it. Ultimately, the Tribunal asked the applicant to resolve the inconsistency between his Statutory Declaration and what he told the Tribunal. At best, the applicant’s answer was that his memory could have been affected by the passage of time.
The applicant’s ground does not assert unreasonableness on the part of the Tribunal’s reasoning. Rather, the complaint is that the Tribunal denied him the opportunity of a meaningful hearing. That the applicant was unable to satisfactorily explain inconsistencies in his evidence to the Tribunal, does not provide the basis to reveal a failure of procedural fairness on the part of the Tribunal. Nor for that matter is the Tribunal’s finding of inconsistency unreasonable (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408; (2018) 92 ALJR 713). Particular “d” to ground four is not made out.
Particular “e” to ground four asserts that the Tribunal relied on questions to which the applicant could not reasonably be expected to know the answers.
The applicant’s solicitor’s lengthy commentary before the Court about the Tribunal hearing, when properly understood, can be reduced to the following.
One, the applicant gave evidence that he would “disregard” the leader of the Fishermen’s Association whom he said would often not wish to, let alone, make complaints at association meetings with the SLA.
The transcript of the Tribunal hearing reveals the following exchange (T6.7 to T7.6):
“M: Who was the leader?
A: We call him Anthony, his name is Anthony Pakiam… and it was subsequently changed I have the documents.
M: I just asked for the name, so which members of the association is required to go for the meetings that was convened by the military.
A: Usually from the committee the leader, me and secretary.
M: And you follow instructions and take your cues from the leader?
A: The leader may say don’t talk about this but my other committee members may say look this is the time usually peaceful so why are we constrained like this so in a situation like that and I would state that.
I: I would state what the committee would say
M: So you would disregard your leader?
A: Yes
M: Why did the leader allow you to disregard him?
A: He is one sided because we are under the control of the army takes the decision that we should not talk about problems. Why should we do that let us live freely, we have no problems, we don't need the pass system, why is it that the Sinhalese carry out their profession freely ....
M: Well you've given me good reason for him not tolerating your behaviour.
A: Nobody argues with the leader, the leader is an elderly person, so everybody agrees with him. But I tell him what I think. Even now the activity of Sinhalese is present in our village.
M: I am surprised the leader allowed you to be his deputy in that case.
A: The reason being that I was a person who was capable of representing everybody.
M: Can I take your claim because of your outspokenness it was the army that tried to stop you being the member of that association is that right?
A: Yes
M: Didn't your leader defend you and your committee?
A: The leader came out of the meeting and tapped me on the shoulder and encouraged me saying that what I said was correct. Apart from that the committee nothing was done.”
The applicant’s solicitor’s submission before the Court was that the applicant would have “no idea why the leader [of the association] acted in any particular way”.
This submission appeared to proceed from the proposition that the applicant could not be expected to know what the leader was thinking. The argument appears to draw on the rules of evidence before a Court and to imply that it was unacceptable to ask a question in cross examination about what a third person thought, as opposed to what they did, or said.
It is trite to say that the Tribunal is not bound by the rules of evidence. (s.420(a) of the Act). Nor is the conduct of the review before the Tribunal an adversarial process such that it can be said the Tribunal conducted a “cross examination” (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 [187] per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant 154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ and [81] per Kirby J, Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [97], Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [18], SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [57]).
In this context, the Tribunal was entitled to explore with the applicant why he thought the “leader” would tolerate his conduct in disregarding him.
The Tribunal’s question in this regard was not unreasonable. While before a Court the question may have been formulated differently, the Tribunal’s role at the hearing is different to that of cross examination in a hearing before a Court.
The relevant issue for the Tribunal here arose from the applicant’s claim to have been actively involved in the interaction between the Fishermen’s Association and the SLA. His claimed high profile in the Fishermen’s Association, and his active involvement, was said to be a significant part of the reason as to why the applicant claimed to fear harm.

It was not unreasonable of the Tribunal to seek to explore with the applicant some detail involving his role in making representations to the SLA on behalf of the Fishermen’s Association.
In any event, the applicant did answer the Tribunal’s question. That is, the leader of the Fishermen’s Association tolerated him as his deputy because “[he] was a person who was capable of representing everybody” (T7.4).
Two, before the Court, the applicant’s solicitor complained that the Tribunal asked the applicant questions about why the SLA put him under surveillance in 2011. Again, the complaint was that the applicant could not reasonably know what was in the “minds” of the SLA.
Relevantly, the transcript reveals as follows (T11.6 to T12.5):
“M: So why did they call you to sign what was this all about?
A” Just because I was under surveillance and because they thought that I could make trouble. For that reason
M So why did they want to put you under surveillance in 2011?
A: I cannot understand either. Whether I still represent the fisheries and check the issues of opposition things like that they were concerned.
M: That sounds fanciful to me. They would know who represent fishermen they will be dealing with them. I understand I am asking you to tell me why you think they did that, suddenly start giving you the signing regime, the reporting regime in 2011 that sounds fanciful that this is a means of finding out if you represent the fishermen. You quit the committee in 2008 that's about 3 years ago if they are not happy about the fishing association if they smell something that is not right then they would have dealt with it and not by waiting till 2011 not be getting you into monthly reporting regime. So here we have a story of you volunteered to resign from the board of directors and years and years later they point you out in the public they haven't done anything until 3 years later when they start to ask you to report monthly to them.
A: May I speak?
M: Yeah
A: I don't understand fully the idea of the military, to my understanding once the military decides that this person is potentially harmful and in opposition to us that worsens issues over the period of time.
M: As a general principle I can understand that the Sri Lankan motives that once they have somebody in sight and once they decide that it is something serious they probably will not let go. But really nothing happened to you from 2008 till you came here. Ok if they are making a case pointing at you and saying that you are an LTTE and all that stuff they were giving you a long leash.
A: I escaped because I didn't want anything to happen to me. My situation is dire because I spoke against them they have me in their sights. And I am a target. And they have not forgotten anything.
M: They never arrested, you they never detained you, they never charged you, they never framed you?
A: They didn't do anything to me but in their books I was the person who opposed them. If they were to shoot me they will not announce it. They wouldn't do so if they abducted me.
M: But the question is why they didn't?
A: The situation is so there I do not know what will happen neither do they.”
Again, it was reasonable, and appropriate, for the Tribunal to explore this matter with the applicant for all of the reasons set out above.
I note further that it has long been held that in protection visa cases, the motivation of the claimed persecutor is highly relevant, and important, in establishing the nexus between the harm feared and the relevant claimed refugee ground.
In short, the concept of “persecution” (in the context now of s.5J(1)(a) of the Act) involves an element of motivation on the part of the claimed persecutor or oppressor for the infliction of harm (Ram v Minister for Immigration and Ethnic Affairs [1995] AATA 381; (1995) 57 FCR 565 at 568, Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 284). Such motivation even extends to private, non-state actors (see Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1; 187 ALR 574; 76 ALJR 667 at [31] per Gleeson CJ and at [120] per Kirby J).
Even further, and importantly, on the evidence before the Court, the Tribunal was aware, and took into account, the difficulty in the applicant being able to provide a plausible account of the motivation of the claimed oppressor. At [64] (at CB 282) of its decision record, the Tribunal stated:
“I put to [the applicant] that it seemed far-fetched that the authorities would place him on reporting conditions in late 2011 over concerns about his still being a representative of the union. I put this to him because, as at 2011, he had not been even a member of the union for about three years; others would have taken up the union's causes in his absence; it would be easy for the authorities to know who they were; and he did not suggest that anyone else connected with the union was facing any harassment. In reply to my concern, [the applicant] said he could not explain the psyche of the military and whereas I put to him that this was an important point to consider -- that it can be unreasonable to expect the victim to account plausibly for the motivations of the perpetrator -- it seemed nevertheless hard to conceive that he would simply have been placed on reporting conditions so many years after resigning from the union without having been arrested or detained or questioned at all; he was just left guessing why he was on reporting conditions.”
[Emphasis added.]
The Tribunal’s decision record was not the subject of submissions by the applicant before the Court on this point. Nonetheless, the decision record reveals that the Tribunal approached its evaluation of the applicant’s evidence in a nuanced and fair way. Particular “e” is not made out.
In all, ground four is not made out.
Ground six asserts:
“The Tribunal failed to consider the likely harm the applicant could suffer due to his conduct in expressing his political opinion explicitly without fear and the likely harm the applicant could face if he express his political opinion explicitly as he did in the past.”
[Errors in original].
The particulars to the ground extract parts of the transcript of the Tribunal hearing (from T9.4, T6.8 and T10.3). These extracts relate to the applicant’s claims concerning his treatment by the SLA and his role in representing the Fishermen’s Association.
Before the Court, the applicant’s solicitor said that the applicant only relied on his written submissions in relation to this ground.
The difficulty for the applicant now is that the written submissions merely recount the applicant’s claim to fear harm for reason of the expression of his political opinion, and what he said was “imputed” by the SLA as a result of that expression.
The complaint in the written submissions is merely that, in light of this, the Tribunal should have “considered” the harm that the applicant may face on return to Sri Lanka.
On the evidence before the Court, the Tribunal did consider the applicant’s claims as they were said to arise from his being “outspoken”. However, the Tribunal found that the applicant had not “gained an individual negative profile with the authorities in 2008” ([104] at CB 289), or ever achieved any significant political profile, or ever gained a “reputation for being an outspoken critic of the authorities” ([107] at CB 289).
In this light, the use of the word “consider” in the applicant’s ground can only be properly understood as a complaint that the Tribunal did not “accept” his claims to have had such a profile. In short, the ground seeks impermissible merits review. It does not reveal jurisdictional error.
For the sake of completeness, I note that the particular to ground six also appears to assert that the Tribunal erred by expecting the applicant to “modify” his behaviour in the future so as to avoid harm (see S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473).
On the evidence, no such expectation is evident in the Tribunal’s decision record. In all, ground six is not made out.
Ground seven asserts the Tribunal failed to consider that the applicant “may fall” into the category of “vulnerable persons”. This is said to be because the Tribunal was “aware” of, and “considered”, that the applicant had previously been treated for mental health issues. I note that the applicant’s solicitor stated before the Court that the applicant relied only on his written submissions in relation to this ground.
Again, this ground misrepresents what the Tribunal did, and misconceives the meaning (in context) of the word “consider”.
The Tribunal did consider the issue of the applicant’s mental health. One, it did so in the context of ensuring the applicant was given a meaningful opportunity to give his evidence at the hearing (see [49] at CB 279). The Tribunal specifically had regard to the applicant’s post hearing submissions of 25 November 2015 on this matter.
Two, the Tribunal also had regard to the Administrative Appeals Tribunal’s “Guidelines on the Assessment of Credibility”, in the context of considering whether the applicant’s claimed mental health issues affected his memory, and the potential impact of this on his anxiety for his partner and child (see [93] at CB 287).
However, given the “number of significant inconsistencies” in the applicant’s evidence, the Tribunal was not satisfied these were due to circumstances outside of his control. The ground again seeks impermissible merits review.
I note that the applicant’s written submissions (at page 9) concede that the Tribunal did consider the mental health issues “solely when dealing with the applicant’s credibility”.
The Tribunal’s finding on the applicant’s credibility was a finding of fact arising from the evidence before the Tribunal, and for which the Tribunal gave cogent reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, [2000] HCA 1; (2000) 168 ALR 407 at [67], SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at [14]–[23], Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135], Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]–[38]).
The post hearing submissions from the applicant’s representative before the Tribunal dated 25 November 2015, to which the Tribunal had specific regard, raised the issue of the applicant’s mental health in the context of the credibility concerns raised by the Tribunal with the applicant at the Tribunal hearing.
The Tribunal considered the mental health issue in the context in which it was raised. There is nothing before the Court to suggest that the applicant ever claimed to fear harm in Sri Lanka due to his “mental health problems”. In all, ground seven is not made out.

Conclusion

None of the applicant’s grounds in the further amended application reveal jurisdictional error. Therefore, it is appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 12 October 2018