BBU16 v Minister for Immigration

[2018] FCCA 1196

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBU16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1196

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Tribunal failed to consider that in the past the applicant had a profile known to Sri Lankan authorities – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
ApplicantWAEE 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

Applicant: BBU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1140 of 2016

Judgment of: Judge Nicholls

Hearing date: 20 November 2017

Date of Last Submission: 20 November 2017

Delivered at: Sydney

Delivered on: 18 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu of Hodges Legal

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 9 May 2016 and amended on 20 November 2017 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1140 of 2016

BBU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 May 2016, and ultimately amended on 20 November 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 5 April 2016, affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

2. The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

1. The applicant is a citizen of Sri Lanka (CB 44). He arrived in Australia as an “unauthorised maritime arrival” on 30 July 2012 (CB 45). The applicant applied for a protection visa which was received by the Minister’s department on 20 December 2012 (CB 30 to CB 102). The applicant’s claims to fear harm were contained in a written statement dated 18 December 2012 and attached to the visa application (CB 58 to CB 61).

2. The applicant claimed to fear harm from the Sri Lankan army and Criminal Investigation Department (“CID”) on the basis of his Tamil ethnicity, and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) ([10] at CB 58). The applicant claimed that in “mid 2008 there was a fight in front of [his] house between the LTTE and the [Sri Lankan Army (“SLA”)] where 2 SLA officers  were shot by the LTTE” ([13] at CB 59). The applicant claimed that after this incident, both he and his father were “detained” for around two to three hours, and questioned by the CID regarding the shooting ([14] at CB 59).

3. The applicant also claimed that he did not know “anything” about the incident but that the CID “constantly” called him in for questioning. He said he had been called in “at least 30 times” and that during the interrogations “they would always place a gun to [his] head”

   
   

   ([15] – [16] at CB 59).

4. The applicant claimed that in 2010, “they”, presumably the CID, came to his house in a white van to question him, but the applicant was not home. Further, and in light of “increasing incidence[s] of abductions and disappearances” the applicant feared that he would “not return from one of the interrogations”, and so left Sri Lanka for Australia. Since his departure, the applicant claimed that the CID had come to his house looking for him twice ([18] – [22] at CB 59).

5. The delegate refused the application on 31 October 2014. The applicant was notified by letter of the same date sent to his representative authorised to receive correspondence on his behalf (CB 103 to CB 128). The applicant applied for review to the Tribunal on 6 November 2014 (CB 129 to CB 130). The applicant was invited to, and participated by video link in, a hearing before the Tribunal on 29 February 2016 (CB 135 to CB 139 and CB 145 to CB 148).

6. Following the Tribunal hearing, the applicant was invited by letter sent to his representative by email on 3 March 2016, to comment on, or respond to, certain information (CB 149 to CB 153). The Tribunal agreed to two extensions of time in which to respond, and the applicant ultimately responded through his representative by email on 31 March 2016 (CB 163 to CB 168). The Tribunal affirmed the delegate’s decision on 5 April 2016 (CB 169 to CB 183).

7. Pursuant to the Court’s orders, the applicant filed written submissions in the matter on 7 November 2017 (“the applicant’s written submissions”) and the Minister filed written submissions on 13 November 2017 (“the Minister’s written submissions”). I am satisfied that the Minister’s written submissions provide an accurate and comprehensive summary of the relevant Tribunal decision, and for the purposes of this judgment, I adopt the relevant paragraphs as follows ([7] – [13] of the Minister’s written submissions):

   “[7] The Tribunal commenced its reasons by describing the claims made by the Applicant in his visa application (CB 174-175 [10]-[20]) and the evidence given by the Applicant at the Tribunal’s hearing (CB 175-176 [21]-[31]). The Tribunal also explained that it raised with the Applicant a number of inconsistencies in and doubts it had about the Applicant’s claims and evidence (CB 175-176 [28]-[32]). The Tribunal also referred to the invitation to comment issued pursuant to s 424A of the Act and the Applicant’s response (CB 179 [43]-[44]).

   [8] The Tribunal accepted that, in 2008, there had been a shooting attack by the LTTE on the Sri Lankan Army post located near the Applicant’s home, which resulted in the death of two Army officers (CB 179 [45]). It also accepted that the Applicant and his father were questioned about the incident, and that persons in the Applicant’s home area might have been abducted or harmed by the Army or CID while the Applicant was in Sri Lanka (CB 179 [45]).

   [9] The Tribunal was not satisfied that the Applicant had ‘provided a completely credible or truthful account of his experiences in Sri Lanka’, and was concerned that he had ‘exaggerated’ his evidence regarding the frequency and period over which he was questioned about the 2008 shooting (CB 179 [45]). That was because there were ‘material’ or ‘significant’ discrepancies between the evidence given by the Applicant at the Tribunal hearing and that given on prior occasions to the Department, especially in relation to the frequency and period over which the Applicant claimed to have been called back for questioning by the CID (CB 179 [45]; see further [46]-[52]). The Tribunal’s concerns about the Applicant’s evidence led to the Tribunal not being satisfied of the Applicant’s claims that he was repeatedly questioned, or called in for questioning, by the CID or Army up until 2010 or 2012, or that the CID ever came in a white van to question the Applicant (CB 180 [52]). The Tribunal also observed that there was ‘no logical reason’ for the CID or Army to constantly or repeatedly question the Applicant over several years (CB 180 [52]).

   [10] The Tribunal was not satisfied that there was a real chance or real risk of the Applicant suffering harm if he were to return to Sri Lanka because of the 2008 shooting, even accepting that the Applicant and his father had been questioned on one or more occasions about it. The Tribunal also was not satisfied that the authorities were interested in the Applicant at the time of his departure from Sri Lanka (CB 180-181 [53]-[54]).

   [11] The Tribunal was not satisfied that the Applicant faced a real chance or risk of harm on the basis of being imputed with separatist or pro-LTTE sympathies, on account of the 2008 shooting, his illegal departure, asylum application and lengthy absence from Sri Lanka (CB 181 [54]). The Tribunal was also not satisfied that there was a real chance of harm arising from the Applicant’s ethnicity or place of origin, and it found that there was no real chance or risk that the Applicant would be suspected of having committed any criminal offences other than departing Sri Lanka illegally (CB 181 [54]-[55]). The Tribunal accepted that the Applicant would encounter the Sri Lankan authorities at the airport on his return and that he may encounter the military in his home area, but the Tribunal was not satisfied that there was a real chance or risk of the Applicant being harmed by the military as a consequence of those encounters (CB 181-182 [56]).

   [12] The Tribunal accepted that the Applicant was likely to be questioned at the airport and charged with an illegal departure under the Immigrants and Emigrants Act. The Tribunal accepted that a fine might be imposed on the Applicant, but the scale of the fine did not amount to serious or significant harm. Further, there was a real chance that the Applicant may spend a brief period on remand, but the Tribunal considered that this also would not amount to serious or significant harm. Furthermore, the Tribunal was satisfied that the treatment of the Applicant by the Sri Lankan authorities would be the consequence of the non-discriminatory enforcement of a law of general application, and hence did not amount to persecution or significant harm (CB 182-183

   
   

   [58]-[61]).

   [13] Having considered the Applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution in Sri Lanka, and accordingly did not satisfy s 36(2)(a) of the Act. Further, the Tribunal found that there was not a real risk the Applicant would suffer significant harm on return to Sri Lanka, and accordingly the Applicant did not satisfy s 36(2)(aa) of the Act (CB 183 [62]-[63]).”

The Application to the Court

1. The applicant filed amended applications on 29 September 2016, 3 July 2017 and 7 November 2017. On 20 November 2017 at the final hearing, leave was granted for the applicant to rely on the amended application filed on 7 November 2017. The grounds of that application are in the following terms [grounds 1 to 5 of the application filed on 3 July 2017 were abandoned in the amended application and have not been reproduced]:

   “Ground 6

   The AAT failed to consider an essential integer of the applicant’s claims when assessing future harm the applicant would face under the refugee assessment criteria and the complimentary protection criterion.

   Particulars

   a. The applicant claimed that the Sri Lankan authorities ‘threatened that they would kill if they did not provide information’ [CB 174, 12].

   b. The applicant claimed that during interrogations the Sri Lankan authorities ‘would place a gun to the applicant’s head’ [CB 174, 12].

   c. The AAT accepted ‘that the applicant and his father were questioned over the matter on one or more occasions …’ [CB 180 53].

   d. The AAT accepted ‘that the applicant will encounter the Sri Lankan authorities, including the CID at the airport, and that he may have further encounters with the military upon return to his home area’ [CB 181, 56].

   e. The AAT found ‘on the country information that the applicant is likely to be questioned at the airport …’ [CB 182, 58].

   f. The AAT accepted that there continues to be a military base close to the applicant’s family home [CB 182, 56].

   g. The AAT failed to consider if the applicant would be exposed to serious harm (as experienced in the past which occurred during questioning/interrogation) during questioning/encounters the applicant could have with the Sri Lankan authorities, the CID and the military if returned.

   Ground 7

   The AAT failed to consider that the applicant had a profile (though the applicant may not have had a profile before his departure from Sri Lanka) in the past, when assessing future harm the applicant may face.

   Particulars

   a. The AAT accepted that there was an attack by the LTTE on a Sri Lankan Army post located close to the applicant’s home in 2008 [CB 179, 45].

   b. The AAT accepted that the applicant and his father were questioned ‘on one or more occasions’ [CB 180, 53] about the incident [CB 179, 45].

   c. The AAT accepted that the applicant was interrogated [CB 180, 48].

   d. The AAT was ‘troubled by the discrepancy in the evidence regarding the frequency and period over which the applicant claimed to have been called back for questioning’ [CB 180, 49].

   e. The applicant claimed ‘During the interrogations they would always place a gun to my head’ [CB 59, 16] and [CB 174, 12].

   f. During the hearing the applicant was asked whether the applicant or his father were accused of any involvement in the attack [26],

   i. The applicant responded that ‘they [CID] thought the applicant and his father may have helped the LTTE to carry out the attack in some way.’

   g. Although, at [CB 180, 53] and [CB 179, 45], the AAT accepted that the applicant and his father were questioned about the 2008 incident, it was not satisfied that there is a real chance or real risk of the applicant suffering harm [CB 181, 54] for the following reasons,

   i. The applicant did not have a profile that was of interest to the authorities before the applicant’s departure from Sri Lanka [CB 181, 54].

   ii. The AAT reasoned [CB 181, 54] that the applicant ‘did not witness the actual incident but found himself in the circumstance common to many Tamils … namely being in some proximity to a clash between the LTTE and Sri Lankan Army’.

   h. In making this finding at [CB 181, 54], the AAT did not consider the applicant’s evidence that his proximity to the clash led to the allegation that the applicant and his father may have helped the LTTE carry out the attack.

   i. The applicant’s physical presence during the attack is not required for the authorities to assume that he aided or gave information to the LTTE. The fact that the applicant did not witness the actual incident is irrelevant.

   j. The AAT failed to consider that the applicant had a profile that was of interest to the authorities in the past.

   k. The AAT fell into error at [CB 181, 54], though it was not satisfied that the applicant had a profile that was of interest to the authorities before the applicant’s departure from Sri Lanka, it ought to have considered that the applicant had a profile in the past (that was known to the authorities) when assessing if the applicant faces a real chance or risk of being harmed in the foreseeable future.”

   [Errors in original.]

Consideration

1. At the final hearing, the applicant was represented by a solicitor. The Minister was represented by counsel.

2. Ground six asserts that the Tribunal failed to consider what was said to be an “essential integer” of the applicant’s claims. Although the ground contains a long list of particulars, before the Court, the applicant explained that the Tribunal, in considering whether the applicant would suffer serious or significant harm on return to Sri Lanka, failed to consider whether he would suffer such harm during “encounters” (questioning) by the Sri Lankan authorities, including the CID and the Sri Lankan army.

3. The applicant’s submissions directed attention to [50] (at CB 180) to [53] (at CB 180 to CB 181) of the Tribunal’s decision record, and asserted that the Tribunal accepted that the applicant had been questioned on more than one occasion about the “incident” that had occurred in 2008. Further, the applicant submitted that the Tribunal accepted the applicant’s account of what occurred during such questioning. In short, that the Sri Lankan authorities threatened to kill the applicant (and his father), if they did not provide the information the authorities sought. Further, the authorities had held a gun against the applicant’s head during questioning (interrogation).

4. It is be remembered that the applicant’s ground is an assertion that the Tribunal failed to consider an integer of the applicant’s claims. In submissions before the Court, the failure was said to be revealed by the use of the word “encounter”, as it appears in the Tribunal’s decision record.

5. In this light, [56] (at CB 181 to CB 182) of the Tribunal’s decision record states:

   “The Tribunal accepts that the applicant will encounter the Sri Lankan authorities, including the CID, at the airport, and that he may have further encounters with the military upon return to his home area. In this regard, the Tribunal is prepared to accept the applicant’s evidence that there continues to be a military base close to his family home. The Tribunal is not satisfied, however, that there is a real chance or risk of the applicant being seriously or significantly harmed by the Sri Lankan military in the course of, or as a consequence of those encounters.”

   [Emphasis added.]

6. The applicant’s submission is that the word “encounter” conveys the meaning of “unexpectedly be faced with or experience something hostile or difficult” ([18.5] of the applicant’s written submissions). No source was given for this definition or usage other than that it was derived from the Internet.

7. I understood the applicant’s argument to be as follows. The applicant had claimed to have had past “encounters” with the Sri Lankan authorities. These involved interrogations, where a gun had been placed against his head. This caused psychological distress which amounted to serious or significant harm.

8. The Tribunal accepted the applicant would encounter the Sri Lankan authorities on his return to Sri Lanka. Therefore, the applicant submits that the Tribunal failed to consider whether, on return to Sri Lanka, the applicant would suffer serious or significant harm during such further encounters.

9. The difficulty for the applicant is that the emphasis on one word (“encounter/s”) in the Tribunal’s analysis, is that which was identified by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [31]:

   “…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must be beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…” 

10. Tribunal decisions are meant to be read fairly. This includes holistically. This requires regard to, and an understanding of, the whole of the Tribunal’s analysis and the findings that arose from that analysis (see [45] at CB 179 to [65] at CB 183 of the Tribunal’s decision record).

11. Relevant to the applicant’s ground six, the Tribunal’s reasoning and findings were as follows.

12. First, the Tribunal was not satisfied that the applicant had “provided a completely credible or truthful account of his experiences in Sri Lanka” ([45] at CB 179).

13. Second, notwithstanding this state of dissatisfaction, the Tribunal was “prepared to accept” that there had been an LTTE attack on a Sri Lankan army post in 2008 near the applicant’s home. Further, the Tribunal was also “prepared to accept that the applicant and his father were questioned about [this] incident” in which the two army officers were killed ([45] at CB 179).

14. Third, the Tribunal was “concerned” however, that the applicant “exaggerated his evidence regarding the frequency and period over which he was questioned about the 2008 incident” ([45] at CB 179).

1. The Tribunal’s view was based on what it said were “material discrepancies” between what the applicant told the Tribunal and what he told the Minister’s department ([45] at CB 179). The Tribunal then explained the basis for this finding ([46] – [47] at CB 179).

2. Fourth, the Tribunal sought to understand some of those inconsistencies by reference to the applicant’s youth in 2008, the fact that over seven years had passed since those events, and how this might affect his memory. The Tribunal therefore placed “little weight” on the inconsistency as to the duration of the interrogation immediately following the 2008 incident ([48] at CB 180).

3. However, the Tribunal found that the inconsistency in the “sequence of events” and “location of the initial questioning” as “more troubling” ([48] at CB 180). The Tribunal was also “troubled” by the applicant’s evidence as to the frequency and the period over which the applicant claimed to have been subsequently questioned ([49] at CB 180). The Tribunal set out the applicant’s “contrasting” evidence in this regard. ([49] - [50] at CB 180).

4. The Tribunal also considered submissions made on the applicant’s behalf in relation to these inconsistencies. In this light, the Tribunal was “prepared to make allowances” for the applicant’s age, the different fora in which the evidence was given, and the “general difficulties” faced by “asylum applicants” in presenting their case ([51] at CB 180).

5. However, the Tribunal found that there was a ([51] at CB 180):

   “…material difference between the applicant’s initial claim to have been questioned over a four year period up until about a month prior to his July 2012 departure and his later claim that he had no personal contact with the Army or CID over the matter from 2010 onwards.”

6. Therefore, the Tribunal was not satisfied given “[t]hese differences”, which it considered significant, that the applicant was repeatedly questioned, or called in for questioning, by the Sri Lankan authorities up until 2010 or 2012, or that the CID ever came to question him in a “white van” as he had claimed at the Tribunal hearing. The Tribunal’s conclusions in this regard were “bolstered” by a number of factors which the Tribunal set out in its decision record (at [52] at CB 180). The Tribunal reasoned that “[t]here appear[ed] to be no logical reason for the CID or [a]rmy to constantly or repeatedly question the applicant over a period of several years” ([52] at CB 180).

7. The Tribunal also found that “[e]ven accepting that the applicant and his father were questioned” over the 2008 matter “on one or more occasions”, the Tribunal was not satisfied this gave rise to a real risk of serious or significant harm to the applicant on return to Sri Lanka. The Tribunal gave reasons for this (see [53] at CB 180 to CB 181). The “combination” of circumstances led the Tribunal to find that the authorities were “not interested in the applicant” at the time he left Sri Lanka ([53] at CB 181). [Paragraphs 54 and 55 (at CB 181) of the Tribunal’s decision record are relevant to ground seven and are dealt with below.]

8. The Tribunal accepted, based on country information, that on return to Sri Lanka, the applicant would “encounter” the Sri Lankan army, including the CID, at the airport, and that he may have “further encounters” with the Sri Lankan army on return to his home area ([56] at CB 181 to CB 182).

9. However, the Tribunal found that there was not a real risk of serious or significant harm “as a consequence of these encounters”. The Tribunal gave reasons for this finding ([56] at CB 181 to CB 182 to [59] at CB 182).

10. The applicant’s ground is not made out.

11. First, what must immediately be said about the applicant’s ground, and the submissions in explanation of it, is that they are selective in focus and do not understand the balanced, nuanced and reasoned analysis set out by the Tribunal.

12. This is not a case where the Tribunal simply rejected the entirety of the applicant’s evidence. As set out above, the Tribunal expressed concerns, arising from the evidence, that were in part addressed by the Tribunal’s understanding of the general difficulties faced by asylum seekers in explaining their case.

13. But that understanding on the part of the Tribunal can only extend so far. The Tribunal gave reasons probative of the evidence and material before it as to why it distinguished between those matters adverse to the applicant to which it gave “little weight”, and those matters of such significant inconsistency, or lacking in explanation, that they could not be similarly “overlooked”.

14. Second, I do not agree with the applicant’s submission and reading of [52] (at CB 180) to [53] (at CB 180 to CB 181) of the Tribunal’s decision record which was central to his ground. Those paragraphs are as follows:

    “[52] These differences in the evidence, which the Tribunal regards as significant, leave the Tribunal unsatisfied that the applicant was repeatedly questioned or called in for questioning by either the CID or Sri Lankan Army up until 2010 or 2012. The Tribunal is also not satisfied that the CID ever came to question the applicant in a white van as suggested at hearing. The Tribunal is bolstered in its conclusion by the applicant’s evidence that he was at school when the incident occurred. The Tribunal considers that this information would have been readily apparent to anyone investigating the matter. The applicant’s evidence also indicated that his family had led a relatively peaceful life up until the incident and had no prior difficulties with the CID or Army. Although the applicant and his family are Tamils, as the applicant said at hearing, all of his neighbours were Tamil. There appears to be no logical reason for the CID or Army to constantly or repeatedly question the applicant over a period of several years.

    [53] Even accepting that the applicant and his father were questioned over the matter on one or more occasions, the Tribunal is not satisfied that this circumstance gives rise to a real chance or risk of the applicant suffering serious or significant harm were he to return to Sri Lanka now or in the reasonably foreseeable future. On the version of events given at the Tribunal hearing, the applicant was not approached for around two years prior to his departure from Sri Lanka, despite living and working only 20km from his home village. As put to the applicant at hearing, were the Army or CID seriously interested in him, it would have been relatively easy for them to find him. The fact that they did not indicates to the Tribunal that the applicant was not genuinely suspected of any involvement in the incident. Secondly, as the applicant agreed at hearing, no further action was ever taken against the applicant or his father in relation to the incident. Thirdly, the applicant’s evidence was that nobody had approached the applicant’s family about the matter since his father’s death. The combination of circumstances, leads the Tribunal to the conclusion that the authorities were not interested in the applicant at the time of his departure.”

15. The applicant submitted before the Court that the Tribunal was “not very confident” in its findings in [52] (at CB 180) of its decision record, and that when this paragraph is read with [53] (at CB 180 to CB 181) of its decision record, it provides the basis for the assertion in ground six.

16. As mentioned above, I do not agree with the applicant’s characterisation of [52] (at CB 180) of the Tribunal’s decision record. When read fairly, holistically and in context, what the Tribunal was addressing in [52] (at CB 180) of its decision record, was the applicant’s claim that he had been “repeatedly questioned” for some years about the events of 2008. The Tribunal rejected this claim. It gave reasons for this, probative of the evidence before it which were reasonably open to it.

17. At [53] (at CB 180 to CB 181) of its decision record, the Tribunal addressed a different question. Here the Tribunal accepted that the applicant and his father had been questioned over the 2008 matter “on one or more occasions”, however, the questioning had taken place closer to the time of the incident.

18. On any fair reading of [53] (at CB 180 to CB 181) of its decision record, the Tribunal accepted that such questioning occurred in or around 2008, as distinct from the applicant’s claim which the Tribunal did not accept, that he had continued to be questioned over a longer period and on subsequent occasions.

19. While accepting that this “initial” questioning had taken place, the Tribunal found that the applicant was not of interest to the Sri Lankan authorities at the time of his departure in 2012, and that the past encounters with the Sri Lankan authorities would not give rise to serious or significant harm in the future.

20. In short, the applicant was questioned in 2008 on some occasions. He was not questioned over a lengthy period. When he left Sri Lanka in 2012, the Sri Lankan authorities were not interested in him. All of these findings and the antecedent findings which informed them, were reasonably open to the Tribunal on what was before it.

21. Third, the applicant also submitted that the Tribunal failed to consider the applicant’s claim that a gun had been placed against his head while he was being questioned, and that this led to “psychological distress”. I note that this latter assertion emerged in submissions, and was not part of the ground as pleaded (see [18.4] of the applicant’s written submissions).

22. The matter of the gun was raised by the applicant in his statement attached to his protection visa application (CB 58 to CB 61). Given what is set out above, it is important to note the entire expression of this aspect of his claim as follows ([16] at CB 59):

    “Since the first time I was called in at least 30 times. Sometimes it would be once a week and other times it would be once a month. During the interrogations they would always place a gun to my head.”

23. The Tribunal acknowledged this aspect of the applicant’s claim ([12] at CB 174):

    “The applicant claimed that he and his family returned to Kalmadu village in 2002 after being displaced for a period and lived in relative peace until 2008. In mid-2008, there was a fight in-front of their house between the LTTE and Sri Lankan Army in which two Sri Lankan Army officers were shot by the LTTE. After this incident, the CID called in the applicant’s father and the applicant to find out more information about the LTTE members who were responsible for the shooting. The applicant and his father were threatened that they would be killed if they did not provide the information. They were detained for approximately 2 to 3 hours. The applicant claimed that after this incident, he was constantly called in for questioning  and estimated that he had been called in at least 30 times. The applicant claimed this occurred sometimes once a week and other times once a month. During the interrogations, they would always place a gun to the applicant’s head.”

    [Emphasis added.]

24. As set out above, the Tribunal unequivocally found that the applicant had not been questioned by the Sri Lankan authorities for around two years before his departure, and rejected that he had been repeatedly questioned up to 2010 or 2012 ([52] at CB 180).

25. As set out above, the matter of the gun was a part of, and inextricably linked to, the claimed questioning of the applicant by the Sri Lankan authorities. The Tribunal acknowledged that the “gun” was a part of the applicant’s claim to have been repeatedly questioned over a long period. The Tribunal’s finding that he was not questioned over that long period, was sufficient to deal with the matter of the gun (and see [16] of the Minister’s written submissions).

26. That is, if the applicant was not approached or questioned for this period, then it followed that he would not have had a gun held to his head.

27. Similarly, even on the basis that the Tribunal accepted that the applicant (and his father) had been questioned initially (in context with the gun to his head), the subsequent lack of interest in him by the Sri Lankan authorities meant that there was no real risk of serious or significant harm on return. Therefore, the Tribunal dealt with the “gun integer” of the applicant’s claims.

28. Fourth, the claim that the applicant suffered “psychological distress” as a result of the placement of the gun to his head was, on the evidence before the Court, not a claim raised by the applicant before the delegate or the Tribunal.

29. The Tribunal is only required to consider a claim to fear harm as presented in evidence or submissions which is expressly made or clearly arising, or a substantial, clearly articulated argument relying on established facts (ApplicantWAEE 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).

30. No such claim arose on the material before the Tribunal.

31. As set out above, the applicant focused on the word “encounter”, to argue that the use of this word by the Tribunal meant that it accepted that the applicant would face “something hostile or difficult” on return to Sri Lanka.

32. Contrary to the applicant’s submission, which appeared to imply that the meaning proffered by him (see [16] above), was also the only meaning to be ascribed to the word “encounter”, the Macquarie Dictionary provides a number of different meanings as follows (Macquarie Dictionary, Revised Third Edition):

    “1. To come upon; meet with, especially unexpectedly.

    2. To meet with or contend against (difficulties, opposition, etc.)

    3. To meet (a person, military force, etc.) in conflict – noun.

    4. A meeting with a person or thing, especially casually or unexpectedly.

    5. A meeting in conflict or opposition; a battle; a combat.”

33. As set out above, the applicant’s argument was that the Tribunal accepted that he would “encounter” the Sri Lankan authorities at the airport on return to Sri Lanka, and when he returned to his home area.

34. When given the meaning of “encounter” urged by the applicant now, this meant that the Tribunal found that the applicant would face something “hostile or difficult” on return to Sri Lanka.

35. The applicant’s submission was that this encompassed the applicant’s claims of past harm, which was said to go beyond “normal” questioning by the Sri Lankan authorities (that is, the gun at the head and psychological distress).

36. Therefore the Tribunal was said to have not addressed this integer of the applicant’s claim when assessing future harm.

37. This submission overlooks the fair reading of the Tribunal’s analysis as set out above. The Tribunal rejected that the applicant had continued to be questioned over the lengthy period leading up to his departure from Sri Lanka.

38. To the extent that the applicant’s submissions in relation to the use of the word “encounter” (in the context of future harm), seeks to draw on arguments related to the Tribunal’s consideration of past harm, then those arguments are rejected for the reasons set out above.

39. It is clear, on a fair reading, that the Tribunal’s use of the word “encounter” (both in the past and future context), was used in the context of “to come upon, meet with” or “meeting with a person or thing, especially casually or unexpectedly” rather than “meeting in conflict or opposition; a battle” (see above at [56]).

40. To understand it in the latter meaning as urged by the applicant, would be to ignore the clear findings made by the Tribunal that other than for “one or more” initial “encounters”, the applicant was not questioned on 30 occasions over a long period, as he had claimed.

41. The applicant’s emphasis on one word requires caution in light of Wu Shan Liang.

42. Finally, the applicant’s submission that the Tribunal did not consider the real chance of serious or significant harm to the applicant on return to Sri Lanka, must, in light of the Tribunal’s analysis and findings, be rejected.

43. The Tribunal plainly considered these issues specifically at [58] (at CB 182) to [61] (at CB 183) of its decision record and in light of its antecedent findings. In all, ground six is not made out.

44. Ground seven alleges that in the context of assessing a real risk of future harm to the applicant, the Tribunal failed to consider that in the past, the applicant had a profile that was “known” to the Sri Lankan authorities.

45. The applicant’s argument as pleaded, and from written submissions, is as follows.

46. The applicant submitted that he “clearly” had a profile after the 2008 incident because he was questioned on more than one occasion by the Sri Lankan authorities, he was threatened to be killed, and a gun was placed to his head.

47. The applicant’s submissions directed attention to [54] of the Tribunal’s decision record (at CB 181) as follows (and see [19] of the applicant’s written submissions):

    “The applicant has claimed that his past encounters with the CID and Sri Lankan Army over the 2008 incident, coupled with his illegal departure, asylum application and lengthy absence from Sri Lanka could lead to him being imputed with separatist or

    
    

    pro-LTTE sympathies were he now to return. The Tribunal has carefully considered this argument but remains unsatisfied that there is a real chance or risk of the applicant being harmed on this basis. As indicated above, the Tribunal is not satisfied that the applicant had a profile that was of interest to the authorities before his departure from Sri Lanka. The applicant did not witness the actual incident but found himself in a circumstance common to many Tamils residing in Northern Sri Lanka at the time, namely being in some proximity to a clash between the LTTE and Sri Lankan Army. As a person who left Sri Lanka and has sought asylum abroad, the applicant is again in [a] situation common to thousands of Sri Lankan Tamils. As put to the applicant at hearing, information from DFAT is that thousands of asylum seekers have returned to Sri Lanka since 2009 with few reports of torture or mistreatment. The Tribunal has also taken into account information from UNHCR and the United Kingdom indicating that the Sri Lankan authorities are currently interested in identifying those with material links to the LTTE or who pose a present destabilising threat. The Tribunal is not satisfied on the material before it that there is a real chance or risk that the applicant would be charged with, or suspected of having committed, any criminal or terrorism related offence other than having departed illegally. The Tribunal is not satisfied that there is anything in the applicant’s profile to distinguish him from the thousands of Tamil asylum seekers who have safely returned home.”

48. The applicant submits that the Tribunal fell into error because it failed to consider that the applicant had been targeted in the past, in circumstances where the Tribunal had accepted he had been so targeted. That is, the applicant submits that whether or not the applicant had an “adverse profile” at the time of his departure from Sri Lanka, he still had an “adverse profile” in the past (in context around 2008). The contention is that the Tribunal failed to consider this in its assessment of future harm.

49. I do not agree with the applicant’s submission.

50. First, and as set out above, the Tribunal’s decision must be read fairly and contextually. Before the Court, the applicant did not establish that the Tribunal found that he did have an “adverse profile” with the Sri Lankan authorities in 2008, or subsequently.

51. The applicant’s submissions emphasised the applicant’s claims as they were put to the Tribunal. However, as set out above, the Tribunal expressly rejected that the applicant had been the subject of interest to the Sri Lankan authorities beyond the immediate aftermath of the incident in 2008.

1. In short, before the Court, the applicant has failed to focus on the findings actually made by the Tribunal. That is, findings that were reasonably open to it to make on what was before it. In this light, I agree with the Minister that the applicant’s ground seeks impermissible merits review.

2. As to the time of the incident itself the Tribunal accepted that the applicant and his father had been questioned in 2008 on a smaller number of occasions than those claimed by the applicant. The Tribunal found that the applicant did not witness the shooting of the two Sri Lankan army officers in 2008, and that he found himself in circumstances common to many Tamils residing in northern Sri Lanka at the time, namely, being in some proximity to a clash between the LTTE and the Sri Lankan army ([54] at CB 181).

3. The Tribunal found that subsequent to the incident in 2008, the applicant did not have a profile to distinguish him from many other Tamils. This was reasonably open to the Tribunal on what was before it.

4. The applicant’s ground really seeks to challenge the Tribunal’s findings. Findings which were reasonably open to it on what was before it, and for which the Tribunal gave cogent reasons. The ground really seeks merits review. Ground seven is not made out.

Conclusion

1. Neither ground of the amended application is made out. Therefore it is appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 18 May 2018