BCG16 v Minister for Immigration
[2019] FCCA 2019
•25 July 2019 (by Judge Street, pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCG16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2019 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – decision refusing protection (Class XA) visa – citizen of Sri Lanka of Tamil ethnicity and Hindu religion – whether well-founded fear of persecution – whether unreasonable conclusion – whether wrong question addressed – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Immigrants & Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), Pt.7 Div.4, ss.36, 91R, 420, 422, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 |
| Applicant: | BCG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 201 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 November 2017 |
| Date of Last Submission: | 30 November 2017 |
| Delivered at: | Perth |
| Delivered on: | 25 July 2019 (by Judge Street, pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr N Draper |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the First Respondent: | Ms T Jonker |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Originating Application filed on 9 May 2016, as amended on 15 February 2017, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 201 of 2016
| BCG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 14 April 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Delegate’s Decision to not grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The Tribunal Decision appears at the Court Book (“CB”) 221-249.
Background prior to the Judicial Review Application
The background prior to the Judicial Review Application is as follows:
a)the applicant is a national of Sri Lanka, born in the Jaffna district and is an ethnic Tamil whose religion is Hindu, who arrived in Australia on 30 July 2012 as an unauthorised maritime arrival: CB 17 and 24;
b)the applicant applied for a Protection Visa on 20 December 2012, the main ground being:
the fear that I have that I will suffer significant harm by the Sri Lankan Authorities due to my ethnicity as a Tamil and due to the imputed political opinion that I have an association with the LTTE: CB 31;
c)on 16 April 2014 the applicant was notified of the Delegate’s Decision to refuse his application for a Protection Visa: CB 107-122;
d)the applicant lodged an application for review with the Tribunal on 24 April 2014: CB 153; and subsequently:
i)the applicant’s migration agent provided written submissions and a letter from the applicant’s local Member of Parliament: CB 173-188, 206 and 209;
ii)a hearing was held on 30 September 2015 in which the applicant, his migration agent and an interpreter were present: CB 210; and
iii)the Tribunal allowed, and the applicant provided, further written submissions on 8 October 2015, in addition to a letter from the applicant’s wife: CB 216-218; and
e)the Tribunal Decision to affirm the Delegates Decision was made on 14 April 2016: CB 221 and CB 238 at [118].
The Tribunal Decision
In the Tribunal Decision the Tribunal:
a)stated that parts of the applicant’s claims were credible, however, when considered against country information there were some inconsistencies which led to the finding the applicant had exaggerated the risk of harm he claimed to fear: CB 230 at [74];
b)gave considerable weight to “reliable” country information stating there are no official laws or policies in Sri Lanka discriminating against Sri Lankan Tamils, and the moderate level of societal discrimination did not amount to persecution involving serious harm of a kind contemplated in s.91R(2) of the Migration Act, particularly where the applicant stated he found it easy to find work: CB 231 at [80]-[81];
c)accepted the applicant was likely to have been detained and questioned by Sri Lankan authorities in or about 2009, after the civil war ended, in order to determine if he was associated with, or had links to, the Liberation Tigers of Tamil Eelam (“LTTE”): CB 232 at [83];
d)assessed that the applicant was not of ongoing interest to the Sri Lankan authorities in light of country information and the fact that almost seven years had passed since the civil war had ceased, and that the applicant's claims that if he returns to Sri Lanka there is a real chance that he will be harmed or mistreated because of his ethnicity and because of his imputed political opinion for a perceived association with the LTTE were not made out: CB 232 [83]-[87] and 235 at [99];
e)noted country information stating the applicant might be questioned by the authorities and monitored if he returned to Sri Lanka, and that he is likely to incur a fine of Rs 50,000 for breaching the Immigrants & Emigrants Act 1949 (Sri Lanka), and that the amount of the fine does not amount to serious harm as contemplated by s.91R(2) of the Migration Act: CB 236 at [101]-[102] and 237 at [106]; and
f)in light of the findings made in the reasons under s.36(2)(a) of the Migration Act, concluded there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant returning to Sri Lanka, there was a real risk of significant harm sufficient to satisfy s.36(2)(aa) of the Migration Act: CB 238 at [114].
Judicial Review Application
The applicant filed the Judicial Review Application on 9 May 2016. The applicant filed an amended Judicial Review Application on 15 February 2017 (“Amended Judicial Review Application”) setting out three grounds of review. The applicant filed a written outline of submissions prior to hearing, as did the Minister. Grounds 2 and 3 of the Amended Judicial Review Application were not pressed at hearing. The sole remaining ground of review, which is ground 1, is as follows:
1. The Tribunal made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.
Particulars
(a) The Tribunal misdirected itself in concluding that the Applicant, of Tamil ethnicity, does not face a real chance of serious harm for reasons of his involvement with the LTTE, when considering the UNHCR Eligibility Guidelines and the UK Upper Tribunal Country Information, whose conclusions fail to reasonably address or lead to the conclusion that the Applicant would not face a real chance of serious harm now or in the reasonably foreseeable future and that the Applicant’s involvement in the LTTE and consequent risk of harm does not reasonably lead to a conclusion that the Applicant does not have a well-founded fear that there is a real chance of serious harm for reasons of his LTTE involvement if he returns to Sri Lanka;
(b) The Tribunal unreasonably concluded that the Applicant will not be subjected to persecution for reasons of being a member of the particular social group being either a Tamil resident in former LTTE controlled areas of Sri Lanka (notably the North and North West) or a Tamil associated directly or indirectly with the LTTE when that conclusion was not reasonably open in the light of all of the country information before the Tribunal, notably, inter alia, in the Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka (OHCHR) 16 September 2015 (OHCHR Report);
(c) The Tribunal, having had regard to the country information before it found that while the Applicant may continue to experience a level of discrimination if he returns to Sri Lanka, erroneously took into account a finding that the applicant will not be targeted for serious harm if he returns to Sri Lanka and unreasonably concluded that the Applicant does not face a real chance of serious harm or persecution for reasons of his ethnicity.
Consideration
Jurisdictional error required
The Tribunal Decision may be liable to be set aside upon review if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if the Tribunal identifies a wrong issue; asks the wrong question; ignores relevant material; or relies on irrelevant material, in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Jurisdictional error may also arise:
a)by reason of the Tribunal denying procedural fairness to which an applicant is entitled under the Migration Act: Migration Act, ss.420 and 422B; Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [18] per French CJ and at [48] per Hayne, Kiefel and Bell JJ; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, and
b)if the Tribunal Decision is affected by legal unreasonableness: Li; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”), and see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J. Should a finding of illogicality or unreasonableness be made, and if it was material in the Tribunal coming to the decision it has, the Court may set aside the decision: Gill v Minister for Immigration & Border Protection [2017] FCAFC 51; (2017) 250 FCR 309; (2017) 71 AAR 525 at [65] per Griffiths and Moshinsky JJ.
It is for the applicant to make out his case and establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for the Protection Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Applicant’s submissions
The applicant submitted that:
a)the Tribunal found:
i)the applicant and his family were detained in April 2009 at an Army camp and held for six months and it accepted the applicant was detained and questioned to determine whether he was associated with, or had relevant links with, the LTTE: CB 232 at [83];
ii)the applicant’s forced labour for the benefit of the LTTE would not give rise now, or in the reasonably foreseeable future to a real chance of serious harm if he returns to Sri Lanka: CB 232-233 at [85]; and
iii)the applicant does not face a real chance of serious harm for his links with the LTTE despite his "minor involvement": CB 233 at [87];
b)in concluding that the applicant would not have a real chance of serious harm if he returns to Sri Lanka for his links with the LTTE, the Tribunal referred to the UNHCR Eligibility Guideline (“Guidelines”), the UK Home Office and DFAT October 2014 and February 2015 country information reports (the “Reports”): CB 227 at [51] and 239-240 at [119]-[124];
c)the Reports do not reasonably or logically provide a basis for a conclusion as to the risk of persecution of the applicant at the time of the Tribunal Decision in 2016 in the context of the findings and observations made by the Tribunal, and the Tribunal could not reasonably conclude, as it did at CB 234 at [99], that based on the Reports the applicant does not face a real chance of serious harm for reasons of his ethnicity “and because of his imputed political opinion for a perceived association with the LTTE”;
d)neither do the Reports provide a basis for a conclusion as to the risk of persecution of the applicant in the context of the findings and observations of the Tribunal, specifically that the applicant does not face a real risk of serious harm for his "minor involvement” with the LTTE, when the Reports fail to comment on the correlation between the extent of involvement and the likelihood of risk of serious harm;
e)a want of reason, logic or rationality in a decision subject to review must be such as to show that the decision-maker has transgressed what was described in KGeneration Pty Ltd & Anor v Liquor Licensing Court & Anor [2009] HCA 4; (2009) 237 CLR 501; (2009) 192 A Crim R 501; (2009) 83 ALJR 327; (2009) 252 ALR 471 at [59] per French CJ as “the minimum constraint applicable to the exercise of any statutory power namely that it must be exercised in good faith and within the scope and for the purposes of the statute”; and
f)the Tribunal made a jurisdictional error when it unreasonably concluded, and addressed the wrong question in finding, that the applicant does not have a well-founded fear of persecution: Li at [27] and [28] per French CJ; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [37]-[38], and at [38] per Gummow and Hayne JJ where it was said that:
… the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. (Emphasis added and footnotes omitted in applicant’s submissions).
Minister’s submissions
The Minister submitted that:
a)the principles relating to unreasonableness and illogicality were set out in Gupta & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 172; (2017) 255 FCR 486; (2017) 161 ALD 1 (“Gupta”) FCR at [34]-[37] per Gilmour and Mortimer JJ;
b)a decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611, (2010) 84 ALJR 369, (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [135] per Crennan and Bell JJ;
c)the applicant appears to assert that there is no logical connection between the Tribunal's findings at CB 232-233 at [85] and ultimate rejection of the applicant’s claim at CB 233 at [87] of the Tribunal Decision, and that he faces a real chance of serious harm for his “minor involvement”, and therefore links with, the LTTE in light of country information;
d)some country information identified in the applicant's submissions concerns ethnicity, though most concerns individuals with actual or suspected current or former connections with the LTTE, former LTTE combatants, cadres or those having a role in relation to post conflict Tamil separatism;
e)the applicant did not claim, before either the Delegate or the Tribunal to have any current or former connections with the LTTE: CB 226 at [36]-[37];
f)in coming to its ultimate conclusion, the Tribunal considered the applicant’s forced labouring for the LTTE, his questioning by the Sri Lankan authorities, his release after questioning, and that virtually everyone who lived in the north of Sri Lanka during the civil war would have had contact with the LTTE and would have had to do what they were told to do by the LTTE;
g)the conclusions in the Tribunal Decision were open on the evidence before it and there was a logical connection between the evidence and the conclusions drawn; and
h)the alleged unreasonableness was linked to the Tribunal asking itself the wrong question, though the question which is said to be wrong is not identified, and in any event the right question was asked because the Tribunal applied the real chance test to come to its ultimate conclusion and this was not unreasonable.
Consideration
The applicant’s contention is that the Tribunal either illogically or unreasonably concluded, by asking the wrong question, that the applicant did not face a well-founded fear of persecution should he be returned to Sri Lanka.
Illogicality
A claim of illogicality or irrationality is only established where it can be shown no rational or logical decision maker will have come to the same conclusion on the same evidence: SZMDS at [128]-[130] per Crennan and Bell JJ. The onus is on the applicant to satisfy the Court that the Tribunal Decision was irrational or illogical: SZTGV & Ors v Minister for Immigration and Border Protection & Anor [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450; (2015) 144 ALD 525 at [131] per Perram, Jagot and Griffiths JJ.
It is generally accepted that the Tribunal may get whatever information it considers relevant, and that the weight it affords that material is a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, subject, however, to the Tribunal giving “proper, genuine and realistic consideration” to the claims and the material before it: Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446, CLR at [26] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In Gupta at [34]-[35] and [39] per Gilmour and Mortimer JJ the majority in the Full Court of the Federal Court observed that:
[34] To discern irrationality or illogicality in the Tribunal's reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]-[85] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[35] Moreover, illogicality must be shown to have affected the decision in question: SZOOR at [85].
[39] Moreover, the Tribunal’s conclusion needs to be considered within the totality of the Tribunal’s reasons. It was but one of a number of adverse conclusions reached by the Tribunal as to the appellant’s claims that she genuinely intended to study. It is by no means among the most significant of the factors which led to the rejection of her claim;
It is evident that the Tribunal considered a range of evidence in order to determine whether the applicant faced a well-founded fear of persecution should he be returned to Sri Lanka based on his Tamil ethnicity and by reason of his imputed political opinion for a perceived association with the LTTE. In that regard:
a)the evidence before the Tribunal was that:
i)the applicant had undertaken some training where he was taught how to shoot a gun because at the time he was in an LTTE controlled area and as such “one had to do what the LTTE told you to do”: CB 225 at [30];
ii)the applicant was forced by the LTTE to prepare bunkers: CB 225 at [31];
iii)when the applicant was in camp from April to October 2009, nothing much happened, however, he said he was asked if he was part of the LTTE and he told the authorities he was not, he said the Sri Lankan Army did not harm him but threatened to shoot him: CB 225-226 at [32]-[33];
iv)the applicant said he never participated in any combat in Sri Lanka and was never a member of the LTTE, never active in politics in Sri Lanka, never spoke out against the government or ever spoken out in favour of a separate Tamil state: CB 226 at [36];
v)the applicant never told the Sri Lankan Army that he undertook training by the LTTE: CB 226 at [37];
vi)the applicant said the last time he was questioned was in 2011 and that it took him one and a half years to leave Sri Lanka because he was making some effort to try and hide during this time: CB 226 at [38]; and
vii)when asked by the Tribunal why he fears he would be harmed now if he returned to Sri Lanka the applicant said the situation for Tamils has not improved there: CB 227 at [44]; and
b)the Tribunal considered the applicant’s claim in relation to harm for reasons of his Tamil ethnicity, and:
i)having regard to country information before it accepted that Sri Lanka is a multi-ethnic society and Sri Lankan Tamils are the second largest ethnic group representing 11.2 per cent of the population: CB 231 at [78];
ii)based on country information on the long civil war in Sri Lanka, accepted the applicant’s claims that from 1990, he and his family were displaced and dislocated from the Jaffna district to Mullativu, may have suffered in many respects and because the war was essentially between the LTTE (represented by the Tamil population) and the Sri Lankan Army (mostly Sinhalese dominated), and would have likely come under adverse attention and suspicion during those times. It also accepted that there was a real chance that the applicant and his family would have suffered discrimination and other hardships and that at the end of 2009, in order to establish security, the Sri Lankan Army started questioning the applicant and may have even suspected him of being associated with the LTTE because of his ethnicity: CB 231 at [79];
iii)considered that the weight of reliable country information, including from the UK Home Office and DFAT, reflected an assessment that currently there were no official laws or policies which discriminate on the basis of ethnicity, including employment, and accepted the DFAT assessment that there is only low-level discrimination in the implementation of laws and policies and a moderate level of discrimination between ethnic groups as a result of the civil conflict. In support of the finding that the applicant may have experienced discrimination in Sri Lanka but this did not amount to serious persecution or serious harm, the Tribunal also considered that the applicant said it was not a problem for him to find work in Sri Lanka: CB 231 at [80];
iv)ultimately, the Tribunal rejected the assertion that the discrimination that the applicant may continue to experience should he return to Sri Lanka can be said to amount to persecution involving serious harm of a kind pursuant to s.91R(2) of the Migration Act: CB 231 at [81]; and
v)considered the applicant’s claim that the situation for Tamils has not improved and that torture against Tamils continues in Sri Lanka, however did not accept this based on all of the evidence, including country information contained in the DFAT Country Report for Sri Lanka (16 February 2015) and from the UK Home Office: CB 234-235 at [95] and [98] and 241 at [124]; and
c)the Tribunal considered the applicant’s claim in relation to harm for reasons of an imputed pro-LTTE, or anti-government political opinion, and:
i)having regard to the widely reported civil war in Sri Lanka which ended in 2009, accepted that the applicant and his family were detained in April 2009 for six months by the Sri Lankan Army, as many Tamils and suspected supporters, sympathisers and cadres of the LTTE were detained by Sri Lankan authorities immediately post-war. It accepted that upon release the applicant was able to return to his home area of Jaffna and was required to report to the CID on two occasions, but that this did not amount to anything more than security procedures by the authorities, as whilst the applicant was detained and questioned by the CID to determine whether he was associated with or had links with the LTTE, the applicant was simply released after the short period of questioning. It did not accept that the CID would have maintained a continuing interest in the applicant because after he was questioned he was simply released: CB 232 at [83];
ii)accepted the applicant’s evidence regarding having never been harmed by the Sri Lankan army but that they did threaten to shoot him, although it had some doubt regarding the threat to shoot the applicant but gave him the benefit of the doubt. The Tribunal found that the applicant had not been harmed for reasons of any actual or perceived political opinion and did not accept that the applicant now faced a real chance of shooting or any other serious harm in Sri Lanka: CB 232 at [84];
iii)the applicant’s evidence that he was questioned and detained by the Sri Lankan Army in Kachalaimadu after relocating there in mid-2010 and that he was never mistreated during the questioning and released thereafter was accepted, but the applicant’s claim that this incident caused him to have a subjective fear that he would be taken and interrogated was not accepted, and based on this evidence and all of the applicant’s circumstances, was not satisfied that the applicant had a profile that would cause the Sri Lankan authorities to have an ongoing interest in him. The Tribunal did accept that males of Tamil ethnicity had disappeared , particularly during the time of the civil war, but that the civil war had finished seven years previously and the applicant did not fall within any of the profiles identified in the UNHCR Guidelines, DFAT country information or the findings of the UK Upper Tribunal: CB 232-233 at [85];
iv)accepted that the applicant was forced against his will to prepare bunkers and was instructed by the LTTE how to fire a gun and that he said he had never been a member or supporter of the LTTE, however, did not accept that this forced labour would give rise now or in the reasonably foreseeable future to a real chance of serious harm if he returns to Sri Lanka: CB 232-233 at [85];
v)while unable to dismiss the applicant’s evidence that since he left Sri Lanka the CID and Sri Lankan Army still enquire about his whereabouts, did not accept that the visits are threatening or point toward any ongoing adverse interest by the Sri Lankan authorities based on the country information from the UNHCR, DFAT and UK Upper Tribunal indicating the profiles of those of adverse interest to the Sri Lankan authorities: CB 233 at [86] and 239 at [119];
vi)accepted that the applicant is a Tamil male who is likely to return to the northern province of Sri Lanka, but found that this did not give rise to a real chance of serious harm now or in the reasonably foreseeable future, and that the UNHCR Guidelines and the UK Upper Tribunal country information indicate that more than forced training or labour by the LTTE is necessary to give rise to the adverse attention of the Sri Lankan authorities: CB 233 at [87];
vii)accepted that the applicant was detained in a displaced persons camp managed by the Sri Lankan Army, but observed that so were many thousands of others, and noted that the applicant was not seriously harmed and was released: CB 233 at [88]; and
viii)rejected the claim that the applicant would be of any adverse interest to the Sri Lankan authorities because it did not accept that the Sri Lankan authorities have any suspicion as to the applicant having any relevant links with the LTTE: CB 234 at [90]-[94].
The applicant pressed that there is no logical connection between the Tribunal accepting that the applicant, against his will, was instructed by the LTTE on how to fire a gun and was forced to prepare bunkers at the border, and the rejection of his claim that he faces a real chance of serious harm for his “minor involvement” and links with the LTTE in light of the country information: CB 232-233 at [83]-[87].
The Tribunal’s conclusions need to be “considered within the totality of the Tribunal’s reasons”: Gupta at [49] per Gilmour and Mortimer JJ, as to do otherwise may result in the Court overlooking that the Tribunal made other findings of equal or greater significance, or of greater generality, which might render findings logical and rational in the context of the whole of the Tribunal Decision: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ; Gupta at [49] per Gilmour and Mortimer JJ.
In contrast to SZVZN v Minister for Immigration & Border Protection [2017] FCA 954; (2017) 72 AAR 449 at [42]-[47] per Bromwich J where the Tribunal reasons were held as disclosing no consciousness or consideration of the information in the UNHCR Guidelines, and the impact that information might have on the appellant's claims for protection, the Tribunal in this case clearly did address the information in the UNHCR Guidelines, and referred to it in detail and the impact the information had when making its findings: CB 232-233 at [85]-[87]. Further, the applicant’s claim that the Tribunal’s finding is not supported by the UNHCR Guidelines and the DFAT Reports, may do no more than invite impermissible merits review. In SZRFP v Minister for Immigration & Border Protection [2016] FCA 522 at [34] per Perry J the Federal Court observed that:
…It is apparent from the assessor's reasons that she correctly treated the UNHCR guidelines and the DFAT report as evidence which identified those people or classes of people which the author or authors considered to be at risk of persecution or harm in Sri Lanka. It is also apparent that the assessor treated that evidence as reliable. That does not amount, however, to treating that evidence as binding or having any statutory force which plainly it did not have; nor to supplanting the test for assessing risk in the context of Australia's non-refoulement obligations with a new test… The appellant's case, as earlier explained was that he was not a supporter and provided only carpentry services and sometimes undertook training or made donations/bribes. As such, the critical finding by the assessor that “the claimant was not a leader or a high profile member of the LTTE or closely related to family with a high risk profile assessor” was clearly open to the assessor on the evidence and no legal error is apparent. As a result, while the appellant took issue at the hearing with the opinions expressed in the UNHCR Guidelines and the DFAT report and considered that persons outside those categories were still at risk of persecution or significant harm, this Court has no jurisdiction to interfere with the assessor's findings as to the weight to be given to that evidence; nor does this Court have jurisdiction to consider whether, having regard to the evidence, there was a real chance that the appellant might suffer persecution for a Refugees Convention reason or significant harm engaging Australia's complementary protection obligations if returned to Sri Lanka.
The Court finds that the reasoning process utilised by the Tribunal to reach the findings it made were based upon evident and logical grounds, including country information, which the Tribunal is required to take into account to the extent relevant to its consideration, in particular the UNHCR Guidelines and DFAT Reports at CB 239 at [119], 241-242 at [124] and [127] and 248 at [150]. Furthermore, the Tribunal gave the applicant an opportunity to respond to the country information during the Tribunal hearing: CB 227 at [51]. The applicant maintained that he never participated in any combat in Sri Lanka, was never a member of the LTTE, was never active in politics, and that he had never spoken out and against the government in favour of a separate Tamil state: CB 226 at [36].
The Tribunal considered the Tamil ethnicity and the degree of involvement the applicant had with the LTTE, as can be seen at [16(b) and (c)] above, and came to a logical conclusion that the applicant was at a “low risk” of harm of persecution as indicated by the country information. That finding was open to the Tribunal on the evidence before it, and the applicant’s assertion that the conclusions reached by the Tribunal were illogical and irrational when considered against the content of the UNHCR Guidelines, the DFAT Reports and the conclusion of the UK Upper Tribunal is not established. The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution was based on the available evidence before it, which included all of the country information, and a process of reasoning which was rational and logical: SZMDS at 133 per Crennan and Bell JJ.
Accordingly, no jurisdictional error is established on the basis of alleged illogicality or irrationality in the Tribunal Decision.
Unreasonableness
The principles central to the standard of legal unreasonableness were explained in Singh at [44] per Allsop CJ, Robertson and Mortimer JJ as follows:
…Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”…
In Gupta at [37] per Gilmour and Mortimer JJ, the majority of the Full Court of the Federal Court said:
Here, where reasons have been provided for the Tribunal’s decision, the Court must assess the reasoning process and identify the factors of legal unreasonableness: Singh at [45]. Those factors are fact dependant: Singh at [48]. Equally, even if reasons have been provided, it may be the case that a Court is unable to comprehend how the decision was arrived at, in which case ‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [76].
The Court notes that in Li at [30] per French CJ it was said that:
30 The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." As Professor Galligan wrote :
"The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed."
A fear of being persecuted will be well-founded if there is a “real chance” of being persecuted: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412, CLR at 429 per McHugh J, and what constitutes the real chance test was considered by the High Court in Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ as follows:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
The Tribunal is required to engage in a degree of guesswork and the fact of any past persecution is relevant to the determination by the Tribunal of possible future persecution: MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [94] per Keane CJ, Perram and Yates JJ.
This is not a case where there was no evident and intelligible justification in the Tribunal Decision. The Tribunal plainly provided reasons (as outlined at [16] above) for reaching the findings that it was not satisfied that the applicant has a well-founded fear of persecution if he were to return to Sri Lanka. Further, the Tribunal examined the conduct of the applicant between the time he claimed the Sri Lankan authorities had questioned him and when he left Sri Lanka for Australia: CB 226 at [38]-[40], and expressly put to the applicant the fact he had not been questioned since 2011 and he did not make an effort to leave for Australia until at least 12 months had passed, raised questions of whether he feared serious harm. The Tribunal did make a number of findings of fact leading it to find that the applicant was not a person of interest to the Sri Lankan authorities: CB 232-233 at [83] and [85]-[86] and went even further to address the question of whether the applicant was a person of adverse interest at CB 234 at [90]-[94].
The Tribunal’s findings at CB 235 at [99] and 238 at [114] are indicative of the Tribunal applying the real chance test in its consideration as to whether the applicant faced a serious risk of persecution due to his Tamil ethnicity or reasons of an imputed pro-LTTE political opinion should he be returned to Sri Lanka:
99. Having regard to all of the evidence, and for the foregoing reasons, the Tribunal rejects the applicant's claims that if he returns to Sri Lanka there is a real chance that the Sri Lankan Army, and the CID, or anyone else, will harm or mistreat him because of his ethnicity and because of his imputed political opinion for a perceived association with the LTTE.
114. For these reasons, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The Tribunal therefore finds the applicant fails to satisfy the requirement in s.36(2)(aa) of the Act.
The Tribunal referred to and assessed the credibility of the applicant with regard to the UNHCR Handbook on Procedures and Criteria for determining Refugee Status, in the context of reasonableness and giving an applicant the benefit of the doubt unless there are good reasons not to do so: CB 230 at [69]. The Tribunal did afford the applicant the benefit of the doubt in relation to his claim that the Sri Lankan Army threatened to shoot him: CB 232 at [84], and also as to the applicant’s claim that he was forced to build bunkers for the LTTE against his will: CB 232-233 at [85]. The Tribunal, however, formed the view after considering the evidence as a whole, including the country information, that the applicant had exaggerated the risk of harm he claims to fear, and some aspects of his evidence were inconsistent and lacked credibility: CB 230 at [74].
The Court is of the view that the Tribunal clearly had regard to all the evidence before it: see at [16] above, and considered all the applicant’s claims both individually and cumulatively: CB 237 at [106], in order to reach conclusions whether there was a likelihood of certain events in the future, and whether or not the likelihood of those events would give rise to a real chance of serious harm to the applicant by reason of his Tamil ethnicity and imputed pro-LTTE political opinions if the applicant were to return to Sri Lanka. The conclusions reached by the Tribunal were ones which were open on the evidence, which had regard to and applied the relevant law, and which were capable of being made within the area of decisional freedom within which the Tribunal operates, and were not therefore unreasonable. Accordingly, no jurisdictional error can be established in the Tribunal Decision on account of legal unreasonableness.
Conclusion and orders
The Court has concluded that the applicant has failed to establish jurisdictional error in the Tribunal Decision. It follows that the Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 25 July 2019
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