BCP15 v Minister for Immigration

[2018] FCCA 1852

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCP15 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1852

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – whether the Tribunal failed to consider relevant considerations – whether the Tribunal failed to correctly interpret or apply the law in relation to laws of general application – whether the Tribunal’s findings were unreasonable or based on no evidence.

Cases cited:
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; (2004) 77 ALD 541; (2004) 206 ALR 242; (2004) 78 ALJR 854; [2004] HCA 25
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263

Applicant: BCP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1398 of 2015

Judgment of: Judge Riley

Hearing date: 15 May 2018

Date of last submission: 15 May 2018

Delivered at: Melbourne

Delivered on: 10 July 2018

REPRESENTATION

Counsel for the applicant: Anthony Krohn

Solicitors for the applicant: Ambi Associates

Counsel for the first respondent: Andrew Yuile

Counsel for the second respondent: No appearance

Solicitors for the respondents: DLA Piper Australia

ORDERS

1. The application filed on 22 June 2015, amended on 16 December 2015, further amended on 25 October 2017 and further amended again on 1 May 2018 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1398 of 2015

BCP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa. 

The applicant’s claims

1. The applicant summarised his claims in his written submissions as follows:

   5.    …

   a) The applicant is a Tamil man from a village in Udappu in Sri Lanka. He married and his wife and child reside in Sri Lanka (CB 76).

   b) The applicant was a fisherman in Sri Lanka. Since the war ended, the applicant has been harassed and targeted by the Sri Lankan authorities (CB 76).

   c) After the war, a permit system required Tamil fishermen to have a licence. It was only compulsory in his village, as the surrounding villages were Singhalese (CB 76).

   d) The applicant had his boat confiscated for ten days by the Sri Lankan Navy as he was fishing without the permit (CB 76). The applicant approached the Navy to have his boat returned and he was forced to kneel down and hit across the face several times (CB 77).

   e) The applicant complained to the Minister of Fisheries (CB 76). After complaining about his boat being confiscated, his boat was returned, but he had increasing problems with the Navy (CB 77). He had previously taken the president of the local fishing association to try and get the boat returned (CB 319).

   f) The Navy approached the applicant and asked him why he had spoken to the Minister and complained about him (CB 77).

   g) After this, the applicant was threatened on 3 occasions. On one occasion the Navy interrogated him about why he had complained to the Minister and had a gun held to his head (CB 77).

   h) The applicant also reported many instances of being stopped and harassed by authorities (CB 77). For instance in 2011, the Applicant was engaged in a Hindu ritual of sacrificing a goat and was beaten and this was not in accordance with the Sinhalese religion of Buddhism. (CB 313, [66]-[67])

The Tribunal’s reasons

1. In his written submissions, the applicant summarised the Tribunal’s reasons for decision as follows:

   8. The Tribunal found that though the applicant’s evidence was ‘detailed and credible’ in relation to some aspects, other aspects were ‘vague, implausible and not consistent with country information.’ (CB 317, [94]). The Tribunal accepted the applicant’s central claim that he was late in returning his boat and the Navy confiscated his boat for ten days (CB 309, [35]; CB 319, [105]), depriving him of his livelihood and the ability to support his family. (CB 76-77)

   9. The Tribunal did not accept that only Tamil fishermen are required to obtain permits (CB 319). It found that there had been a ‘general trend’ of the Sri Lankan authorities easing their treatment of Tamil people (CB 318, [99]). It accepted that Tamils may suffer some discrimination, but that this would not amount to serious harm or significant harm. (CB 325, [133])

   10. The Tribunal rejected any claim that the applicant would be harmed in the future by ‘grease devils’ (CB 322, [118]).

   11. The Tribunal also rejected the applicant’s claim that he being prevented from practicing animal sacrifices would be persecution for a reason under the Refugees Convention, as the law preventing animal sacrifices is a law of general application without discriminatory intent (CB 323, [122]) and further that this would not constitute significant harm. It considered that the prospect of the Applicant participating in a future animal sacrifice would be remote as he claimed to have done so only once, and it was “not a Hindu tradition”. (CB 323, [123])

   12. The Tribunal rejected the claim that the applicant will be targeted as an unsuccessful asylum applicant, on the basis that any treatment of him as a result of contravening the Immigrants and Emigrants Act would not amount to serious or significant harm, having found that the chance of imprisonment rather than a fine. (CB 325-330)

Ground 1

1. The first ground of review in the application filed on 22 June 2015, amended on 16 December 2015, further amended on 25 October 2017 and further amended again on 1 May 2018 (“the application”) is:

   The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations including claims, or integers of claims, or information required by the Act and the law to be considered.

2. There are a number of particulars to this ground, which will be considered in turn.

Ground 1(a)

1. The first aspect of ground 1 is as follows:

   The Tribunal rejected a number of the Applicant’s claims to have suffered serious harm including being threatened on three occasions by the Navy, and having a gun held to his head, because it found his evidence “vague and inconsistent” (Tribunal’s Reasons for Decision [109]), but it did not consider as a possibility whether the discrepancies it observed in the applicant’s evidence may have been the result of the torture and trauma he claimed to have suffered, rather than the result of invention of false claims. (Court Book (“CB”) 320-321, Tribunal’s Reasons for Decision, [108] – [114])

2. This aspect of ground 1 concerns paragraphs 108 to 114 of the Tribunal’s reasons for decision, which are as follows:

   108. The tribunal finds it difficult to accept that Navy officers would have wait approximately 1 ½ months after the applicant’s boat was returned to beat and threaten him for having involved the Minister for Fisheries. The tribunal does not find it plausible that the applicant would have been able to continue his fishing for 1 ½ month after getting his boat back without any issues if the Navy officers held particular enmity towards him due to this or for any other reason.

   109.The applicant’s evidence in relation to events that transpired after he got his boat has been vague and inconsistent. At the hearing he claimed that after the Navy officer put a gun to his head during the above mentioned incident, he stopped fishing out at sea but did bay fishing, for which he did not require a permit. However, as put to the applicant at hearing, this does not appear to have been his evidence to the department. The decision record does not indicate that the applicant gave evidence at his interview that he changed his area of fishing. Instead, the decision record indicates that he claimed that after his boat was returned, the Navy would sometimes refuse to give him a pass. The applicant’s evidence at hearing at no point indicated that he was denied a pass at any time after his boat had been returned to him.

   110.The tribunal notes that the applicant has consistently claimed he was threatened on three occasions before leaving Sri Lanka but his evidence on the circumstances of those three occasions has differed. His statement of claims refers to having a gun put to his head not long after getting his boat back, another incident when the Army came to the applicant’s mother’s home during which the applicant fell to his knees crying and the last threat, which is not described in his statement, having occurred one month before his departure.

   111.The decision record indicates the applicant’s evidence at interview was that his boat was confiscated and he was threatened at gunpoint by the Navy. After his boat was returned, he was threatened once at his mother’s house, once after the Navy stopped him on his bicycle and once in front of his house.

   112.In contrast, the applicant’s evidence at hearing before the tribunal was that the three times that he was threatened was when they confiscated his boat and beat him, when they put a gun to his head approximately 1 ½ months after he got his boat back and a month before he came to Australia. He claimed that the last (third) incident was when he was stopped on his bike. He further claimed that, at some other time before the last incident the Navy also came to his mother’s home and inquired about why he was not going out fishing. He claimed at hearing that he was also asked to report to camp on that occasion but that they did not beat him. The tribunal is unable to reconcile these inconsistent descriptions of the sequence of events.

   113.Despite these incidents being the alleged catalyst for the applicant leaving Sri Lanka in 2012, the applicant’s evidence about what was said to him by the Navy and what threats were made was vague. His evidence about when certain incidents happened, such as the Navy coming to his home inquiring why he has not been out fishing at sea, was also vague. The tribunal further finds the applicant’s claim that the Navy officers would attend the applicant’s mother’s home and inquire why he was not at sea to lack credibility. The tribunal does not accept the applicant’s explanation that the Navy wanted him to go to sea in order to harass and cause him further problems. The tribunal finds that if Navy officers were intent on causing the applicant problems, they would not have needed to use the excuse of the applicant going out to sea in order to do so.

   114.The tribunal does not accept on the evidence before it that the applicant was unable to fully express himself because he had a Malaysian Tamil interpreter at his departmental interview. The decision record, which sets out the applicant’s evidence at interview, indicates that, while his evidence was vague, the applicant appears to have been able to express himself. It appears no submissions were made in relation to interpreting problems either during or after the departmental interview. The applicant’s evidence in relation to events after his boat was returned was equally vague at his tribunal hearing and there was no indication of any interpreting problems on that occasion.  

3. The applicant conceded that he did not claim before the Tribunal that the trauma that he claimed to have suffered caused him to give inconsistent evidence.  However, the applicant claimed before this court that whether the inconsistencies in his evidence were caused by the trauma he claimed to have suffered was an obvious question squarely raised on the claims and materials before the Tribunal.

4. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263, the Full Court of the Federal Court accepted at [58] that it is a jurisdictional error for the Tribunal to fail to deal with a claim squarely raised by evidence and material which the Tribunal accepts. In the present case, the Tribunal, at paragraph 116 of its reasons for decision, expressly rejected the claims that the applicant had suffered the traumas he claimed to have suffered, including being beaten and having a gun held to his head.

5. Consequently, it was unnecessary for the Tribunal to consider whether the alleged trauma had caused the applicant to give inconsistent evidence.  This aspect of ground 1 is not made out.

Ground 1(b)

1. The second aspect of ground 1 is as follows:

   The Tribunal found that animal sacrifices banned under the law were “not a Hindu tradition”, but failed to consider whether they formed part of the Applicant’s own religious beliefs, despite his evidence that they were so. (CB 323, Tribunal’s Reasons for Decision, [66]-[67], [122])

2. This aspect of ground 1 concerns paragraphs 66, 67 and 122 of the Tribunal’s reasons for decision, which are as follows:

   66.The tribunal asked the applicant about the problems he faced when he was going to sacrifice a goat. He stated that they have a Hindu temple dedicated to Goddess Shakhti. Some Tamil fishermen treat the goddess as a goddess of the sea. They have a festival and make a vow. They sacrifice an animal, usually a goat. The festival is called Velvi in Tamil. It is only done in the Kali temple. This has been happening since time immemorial. They had no issue with it but in the last four to five years the Sinhalese people were raising objections.

   67.He made a vow and wanted to make an offering. He took a goat and was chased and not allowed to make the offering by a mob. It was not only him, many people had brought offerings like that but the Sinhalese mob chased people away. He was wearing a traditional long cloth; they identified the Tamils by their dress. There were Sinhalese people and Tamils. Police were there too. The police were trying to disperse people but it was a big melee. This happened in 2011. There were festivals before but he did not make a vow prior to this. The tribunal asked if he had previously had any problems in relation to practicing his faith. He stated that this was the main problem.

   …

   122.While the tribunal acknowledges that the effect such a ban has on a ceremony at a Hindu temple would lead to feelings of discrimination by predominantly Hindu Tamils, the tribunal finds on the evidence referred to above that the ban on animal sacrifices in Sri Lanka and the court order that was made in relation to the September 2011 ceremony do not have a discriminatory intent or impact and are not being applied selectively or in a discriminatory manner for a Convention reason. The tribunal therefore finds that these are laws of general application and their application does not give rise to persecution under the Refugees Convention. The tribunal further does not accept that a ban on animal sacrifices or court order preventing such sacrifices constitutes significant harm within its meaning under the Act.

3. The applicant argued that it was insufficient for the Tribunal to find that animal sacrifice was not a Hindu tradition, when the applicant’s evidence was that animal sacrifice was associated with a Hindu cult followed by Tamil fisherman and that he participated in animal sacrifice pursuant to a vow.

4. However, the Tribunal rejected the Convention aspect of the claim on the basis that animal sacrifice was banned by a law of general application that was applied in a non-discriminatory manner.  The Tribunal rejected the complementary protection aspect of the claim on the basis that being prevented from participating in animal sacrifice was not significant harm as defined in the Migration Act 1958.  Subject to the discussion in relation to ground 2, those conclusions are a complete answer to this aspect of ground 1.  Those conclusions mean that the applicant’s religious motivations in participating in animal sacrifice could not result in him being owed protection under the Convention or under the complementary protection provisions.

5. Moreover, and as a subsidiary reason, the Tribunal found in paragraph 123 of its reasons for decision that, because the applicant had only participated in animal sacrifice once and animal sacrifice is not part of Hindu tradition, there was not a real chance that the applicant would participate in animal sacrifice again.  That finding was open to the Tribunal.

6. The second aspect of ground 1 is not made out.

Ground 1(c)

1. The third aspect of ground 1 is as follows:

   The Tribunal did not consider whether the Applicant may be at risk of serious or significant harm because of the entrenched culture of torture and mistreatment of persons in detention or prison or under arrest by the police or other authorities, although it had evidence and submissions about this. (CB 231, 233, 235, 238, 239, 240, 241; CB 326, Tribunal’s reasons for Decision, [139] – [140])

2. This aspect of ground 1 concerns paragraphs 139 and 140 of the Tribunal’s reasons for decision, which are as follows:

   139.The tribunal’s assessment of the country information before it, including that contained in submissions from the applicant’s representative, is that it does not indicate that all returnees/failed asylum seekers, or all Tamil returnees are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Nor does the country information indicate that all persons or all Tamils who leave Sri Lanka illegally are imputed with LTTE associations or sympathies. Rather, it appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers (from a western country) may be of adverse interest to the authorities. In light of its findings regarding the applicant’s past circumstances in Sri Lanka the tribunal does not accept that he has a profile of interest and therefore does not accept that the applicant will be of interest to the Sri Lankan authorities upon return.

   140.The tribunal finds that the applicant will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. In light of its findings regarding his profile, the tribunal does not accept that the applicant will be handed over to the CID at the airport or that anything other than standard checks will be undertaken. Taking into account the applicant’s circumstances and profile, the tribunal does not accept that such standard questioning and security checks amounts to serious harm or significant harm as set out in s 36(2A). As noted above, the tribunal does not accept that the applicant has a profile that would be of interest to the Sri Lankan authorities. The tribunal also finds that the risk of the applicant being questioned in a way that amounts to significant harm to be remote and less than real.

3. These paragraphs concern the applicant’s treatment as a failed asylum seeker.  As specified at the beginning of paragraph 140 of the Tribunal’s reasons for decision, the Tribunal did not accept that the applicant, as a failed asylum seeker, would be subjected to any detention or interrogation, but would only be subjected to the standard questioning and procedures. 

4. The standard questioning and procedures for non-voluntary returnees were described by the Tribunal in paragraph 135 of its reasons for decision as being questioning by the Sri Lankan authorities and criminal and security checks.  As the applicant did not have a criminal history and did not raise any security concerns, it was open to the Tribunal to conclude that the standard questioning and procedures did not pose a real risk of significant harm to the applicant.

1. As the Tribunal did not accept that the applicant would be interrogated and detained as a failed asylum seeker, there would be no occasion for him to be subjected to what the applicant described as the entrenched culture of torture and mistreatment of persons in detention or prison or under arrest by the police or other authorities.

2. However, in oral submissions, the applicant also sought to include in the third aspect of ground 1 the risk to the applicant as an illegal emigrant.  In relation to this claim, the Tribunal did accept that the applicant may be held in detention for a few days.  The Tribunal said in relation to the applicant being an illegal emigrant:

   158.The above findings and reasoning lead the tribunal to find that the chance or risk that that the applicant would spend more than a few days in prison after his return to Sri Lanka as a result of being charged with breach of Sri Lankan departure laws or for any other reason, is remote.

   159.The tribunal has considered whether the applicant would face a real chance or risk of serious or significant harm during the few days he would spend on remand.

   160.Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms and instances of torture, maltreatment and violence.30  Reports indicate that overcrowding is caused by, among other things, a large backlog of cases and that, while some prisoners are released after a day, many languish for years until they are released by court order.31 The evidence indicates that both Tamil and Sinhalese prisoners face the same conditions and there are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka's prison system. Some reports also identify those who have been tortured to include Tamils with an actual or perceived association with the LTTE.32

   161.While the above reports refer to torture and assault of Tamils with actual or imputed LTTE association, the tribunal has found that the applicant does not hold such a profile. The evidence before it suggests that poor prison conditions are not applied in a discriminatory manner against Tamils and the tribunal does not accept that the applicant would face a real chance of serious harm as a result of being a Tamil, a young Tamil male, a Tamil from the Northwest Province or any other Convention ground while he is imprisoned on remand for a few days after his return to Sri Lanka.

   162.Given that the applicant will be on remand for no more than a few days, the tribunal also finds that the risk that he would face significant harm while on remand for this short period is remote. 

   163.Furthermore, as raised with the applicant, under Australian legislation, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. Country information indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve33 rather than an intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation. Given the tribunal’s findings that the applicant will not face a real risk of significant harm as a Tamil, a failed asylum seeker or because of any imputed political opinion arising as a result, the tribunal also does not accept that there is a real risk the applicant will face significant harm whilst in prison for a relatively short period as a Tamil, due to any actual/imputed political opinion arising from his ethnicity or for any other reason.

   30    US Department of State 2012, Country Reports on Human Rights Practices in 2011 - Sri Lanka, 24 May, Section 1; UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report - Sri Lanka, 31 March.

   31    UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, Section 3.9 < US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1.

   32    Freedom from Torture, 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September.

   33 UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report -- Sri Lanka, 31 March; US Department of State 2012, Country Reports on Human Rights Practices in 2011-- Sri Lanka, 24 May, Section 1 ;US Department of State 2012, Country Reports on Human Rights Practices in 2011 - Sri Lanka, 24 May, Section 1.

3. It can be seen that the Tribunal accepted that the applicant may be detained for a few days as an illegal emigrant, but that the chance of him being detained for a longer period was remote: [158].

4. The Tribunal also accepted that there are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system: [160]. “Mistreatment” may be understood in this context as a euphemism for torture.

5. The Tribunal then expressed the view that some reports, but not all, identified those to have been tortured as including Tamils with actual or imputed associations with the LTTE: [160]. By inference, the Tribunal accepted that some reports indicated that some people were tortured who were not Tamils with actual or perceived links to the LTTE.

6. The Tribunal then noted that the applicant did not have actual or perceived links to the LTTE: [161]. That point did not deal with the other people who do not have actual or perceived links to the LTTE who may be tortured.

7. The Tribunal then said that the poor prison conditions were not applied in a discriminatory manner: [161]. “Poor prison conditions” are not torture. They are the other conditions that the Tribunal described at the commencement of paragraph 160 of its reasons for decision, namely, overcrowding, poor sanitary conditions and limited access to food. The Tribunal’s point about poor prison conditions did not deal with the issue of people who may be tortured.

8. The Tribunal then said that the applicant did not face a real chance of serious harm, that is, torture, as a result of being a Tamil of certain descriptions or for any other Convention reason while being held on remand for a few days. 

9. That conclusion concerns matters of fact and degree and was open to the Tribunal.  However, it does not deal with the applicant’s point, which was that anyone, Tamil or Sinhalese, can be subjected to torture in Sri Lankan prisons regardless of their profile.  That is, the applicant’s point raised complementary protection issues.

10. In relation to complementary protection, paragraph 163 of the Tribunal’s reasons for decision concerns the lack of intention to inflict harm involved in poor prison conditions.  Paragraph 163 of the Tribunal’s reasons for decision does not apply to torture, which is necessarily intentional. 

11. Therefore, the only aspect of the Tribunal’s reasoning that applies to complementary protection issues is the finding in paragraph 162 of the Tribunal’s reasons for decision. That finding was that the applicant would be in detention for such a short period of time that the risk of him facing significant harm, such as torture, was remote.

12. That finding was a matter of fact and degree.  It was open to the Tribunal.  The third aspect of ground 1 is not made out.

Ground 2

1. The second ground of review in the application is:

   The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.

   Particulars

   (a)The Tribunal found that laws banning animal sacrifice were “laws of general application and their application does not give rise to persecution” under the Refugees Convention. (Tribunal’s Reasons for Decision, [53], [122])

2. This ground of review concerns paragraphs 53 and 122 of the Tribunal’s reasons for decision, which are as follows:

   53.He feels that his treatment is the consequence of another incident. The Navy had an explanation session about the pass procedures. The applicant got up and asked why they were implementing this only for Tamils and not Sinhalese fishermen. He feels that they remembered that. He stated that this session was about a month before his problem started. From time to time they organised and called the fishermen for a meeting to instruct them. In one of those meetings, he got up and asked the question. Nothing happened on that day but when they questioned him, they mentioned this incident. The tribunal asked why he had not mentioned this incident before. He stated that he forgot to mention this because he did not think it was a major thing to say in the first interview. He didn’t want to change his story in the second interview but thought he would say everything to the RRT. He thinks there is a connection. He stated that he is saying this now because it is his last opportunity. If he returns back to his country he has real fear and has to say everything.

   …

   122.While the tribunal acknowledges that the effect such a ban has on a ceremony at a Hindu temple would lead to feelings of discrimination by predominantly Hindu Tamils, the tribunal finds on the evidence referred to above that the ban on animal sacrifices in Sri Lanka and the court order that was made in relation to the September 2011 ceremony do not have a discriminatory intent or impact and are not being applied selectively or in a discriminatory manner for a Convention reason. The tribunal therefore finds that these are laws of general application and their application does not give rise to persecution under the Refugees Convention. The tribunal further does not accept that a ban on animal sacrifices or court order preventing such sacrifices constitutes significant harm within its meaning under the Act.

3. In support of this ground, the applicant relied on Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; (2004) 77 ALD 541; (2004) 206 ALR 242; (2004) 78 ALJR 854; [2004] HCA 25 where the High Court said:

   42.Further, what was said in Israelian does not establish a rule that the implementation of laws of general application can never amount to persecution. It could scarcely be so given the history of the Nuremberg Laws against the Jews enacted by Nazi Germany which preceded, and help to explain, the purposes of the Refugees Convention. Rather, the Court majority determined that, on the facts of that case, it had been open to the Tribunal to conclude that the implementation by Armenia of its laws of general application was not capable of resulting in discriminatory treatment. A law of general application is capable of being implemented or enforced in a discriminatory manner.

   43.The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A.  His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]”66 These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen67.  As a matter of law to be applied in Australia, they are to be taken as settled.  This is what underlay the Court's decision in Israelian.  Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.

   66Applicant A (1997) 190 CLR 225 at 258.

   67 (2000) 201 CLR 293 at 303 [28].

4. The applicant argued that the Tribunal fell into jurisdictional error by failing to determine whether the laws of general application were just and appropriate. 

5. However, Applicant S does not require that issue to be considered in all cases.  It requires that issue to be considered where laws of general application result in discriminatory treatment that could amount to persecution.  The High Court held that discriminatory laws of general application will not be persecutory if they are appropriate and adapted to achieving a legitimate object of the country concerned.

6. In the present case, the Tribunal found that the laws of general application were not discriminatory.  It was therefore unnecessary for the Tribunal to consider whether the laws were appropriate and adapted to achieving a legitimate object.

7. Ground 2 is not made out.

Ground 3

1. The third ground of review in the application is:

   The Tribunal fell into jurisdictional error in that it acted irrationally or illogically or unreasonably.

2. This ground relies on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 where Crennan and Bell JJ said:

   130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   Was the Tribunal's fact finding “illogical” or “irrational”?

   132.Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal’s finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.

   133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.  There was evidence that the first respondent was married with four children and that he regularly visited Pakistan to see his family after the time at which he said he commenced, as he put it, “the practice of homosexuality” in the UAE.  In particular, he visited his family for three weeks before coming to Australia.  During the time when he said he engaged in the “practice of homosexuality” in the UAE, and when he visited the United Kingdom, the evidence was that under both civil law and Shari’a in the UAE homosexual activity was criminalised128.  The first respondent also gave comprehensive evidence of homosexual activity in the UAE which was uncorroborated.  The Tribunal saw the first respondent give evidence and sought answers and explanations from him.  Such was the evidentiary context in which the Tribunal determined that the first respondent’s conduct, first in returning to Pakistan and secondly in failing to seek asylum in the United Kingdom, was conduct which was inconsistent with his claimed fears of persecution as a result of homosexuality. 

   134.The process of reasoning followed by the Tribunal, which needs to be considered in the light of all of the evidence set out above, was as follows:  the Tribunal appeared to accept that homosexuals as a social group in Pakistan were the subject of persecution.  It also appeared to assume that a person with a genuine fear of persecution as a homosexual in Pakistan would not go back to Pakistan and that a person with such a fear would seek asylum at the first available opportunity.  The Tribunal then examined the first respondent’s conduct in the United Kingdom in 2006 and in returning to Pakistan for three weeks in 2007.  The Tribunal asked whether that conduct was consistent with a fear of persecution based on the practice of homosexuality said to have occurred in the UAE.  The Tribunal then concluded that the conduct was not consistent with the claims of homosexual conduct said to form the basis for the fear of persecution.  The Tribunal essentially found that it was improbable that the first respondent feared persecution because of homosexuality as claimed.  It is that conclusion which the Federal Court found illogical and irrational; it would have come to a different conclusion which appears to be largely based on the view that no‑one in Pakistan would necessarily discover that the first respondent had, as claimed, engaged in the practice of homosexuality.  The Federal Court differed from the Tribunal in finding that the first respondent’s fear of persecution as a result of homosexuality was plausible whereas the Tribunal had found it improbable.

   135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal.  Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.  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.  None of these applied here.  It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision.  Nor could it be said that there was no probative material which contradicted the first respondent's claims.  There was.  The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan. 

   136.There is no sense in which the decision that the first respondent did not fear persecution, or the findings upon which that decision was based, could be said to be “clearly unjust”, “arbitrary”, “capricious”, “not bona fide” or “Wednesbury unreasonable”.  Whilst these analogous categories were not relied on, they serve to confirm the want of jurisdictional error by reference to the closely related complaints of illogicality and irrationality.  Neither the decision that the Tribunal was not satisfied that the first respondent feared persecution nor the findings on the way to that conclusion were “irrational” or “illogical” in the sense explained in these reasons.  The Tribunal’s decision did not show any jurisdictional error.

   128 United States, Department of State, Country Report on Human Rights Practices 2006: United Arab Emirates, March 2007.

1. There are two particulars to this ground, which will be considered in turn.

Ground 3(a)

1. The first aspect of ground 3 is as follows:

   The Tribunal was unreasonable in rejecting the credibility of the Applicant’s claims or evidence that he may have been the target of harm by the Navy because he spoke of grievances at a meeting of fisherman and the Navy. (Tribunal’s Reasons for Decision, [53], [115])

2. This aspect of ground 3 concerns paragraphs 53 and 115 of the Tribunal’s reasons for decision, which are as follows:

   53.He feels that his treatment is the consequence of another incident. The Navy had an explanation session about the pass procedures. The applicant got up and asked why they were implementing this only for Tamils and not Sinhalese fishermen. He feels that they remembered that. He stated that this session was about a month before his problem started. From time to time they organised and called the fishermen for a meeting to instruct them. In one of those meetings, he got up and asked the question. Nothing happened on that day but when they questioned him, they mentioned this incident. The tribunal asked why he had not mentioned this incident before. He stated that he forgot to mention this because he did not think it was a major thing to say in the first interview. He didn’t want to change his story in the second interview but thought he would say everything to the RRT. He thinks there is a connection. He stated that he is saying this now because it is his last opportunity. If he returns back to his country he has real fear and has to say everything.

   …

   115.At the hearing, the applicant raised the claim that a further reason he was targeted by the Navy was because he complained about the different treatment given to Sinhalese and Tamil fishermen at an information session between Tamil fishermen and the Navy approximately a month before his boat was confiscated. The tribunal is willing to accept that the applicant may have raised concerns about Tamil fishermen being treated differently to Sinhalese. The tribunal does not accept that he would have been the only one voicing such concerns. The tribunal is of the view that Tamil fishing associations, such as the one to whom the applicant turned to for help when his boat was confiscated, would have voiced similar concerns. As noted above, the country information, however, does not suggest that Tamil fishermen face a real chance or risk of serious or significant harm. The tribunal does not accept that the applicant would have been targeted for threats or beatings by the Navy because he had asked a question or accused the Navy of discriminatory practices on one occasion at a meeting. The tribunal further does not accept on the country information before it that, if the applicant were to voice similar concerns in the future, he would face a real chance or risk of serious or significant harm.

3. In his written submissions, as well as relying on the unreasonableness ground, the applicant submitted that there was no evidence for the Tribunal’s finding that the applicant was not targeted because he asked a question or accused the Navy of discriminatory practices on one occasion at a meeting.  In his oral submissions, the applicant said that there was no evidence about how the Navy might act, and the Tribunal had assumed that the Navy would always act in a reasonable way.

4. However, the Tribunal did refer in paragraph 115 of its reasons for decision to evidence, namely, country information, to the effect that Tamil fishermen did not face a real risk of serious or significant harm.  In view of the many interactions between fishermen and the Navy, the Tribunal’s conclusion should be understood as including that Tamil fishermen did not face a real risk of serious or significant harm at the hands of the Navy.  Therefore, there is no substance to the no evidence ground.

5. In view of the country information that Tamil fishermen did not face a real risk of serious or significant harm, the Tribunal’s conclusion that the applicant did not face a real risk of serious or significant harm by reason of him having complained at a meeting was open to it.  That is, the finding was not unreasonable in the necessary sense.

6. The first aspect of ground 3 is not made out.

Ground 3(b)

1. The second aspect of ground 3 is as follows:

   The Tribunal was unreasonable in rejecting the credibility of the Applicant’s claims or evidence that he may have been hit or threatened or had a gun pointed at his head by Sri Lankan Navy personnel because he had complained to a government Minister about the Navy having confiscated his boat. (Tribunal’s Reasons for Decision, [58], [116])

2. This aspect of ground 3 concerns paragraphs 58 and 116 of the Tribunal’s reasons for decision.  In its summary of the applicant’s evidence at the Tribunal hearing, the Tribunal said:

   58.The Navy officers made threats to his life. They said if it happened again they would not let him live. This happened within 4-6 weeks of the applicant getting his boat back. In total three times this happened; first when they confiscated his boat and kneeled him down, then when they put a gun to his head and next was a month before he came to Australia.

3. The Tribunal drew conclusions in relation to these claims as follows:

   116. As noted above, the tribunal accepts that the applicant’s actions in involving the Minister for Fisheries would not have been looked upon favourably [by] the Navy, which may have resulted in some harassment [of] him.  However, having regard to the evidence before it and the concerns set out above, the tribunal does not accept that after his boat was returned, the applicant was ever taken or made to report to the Navy camp, beaten, had a gun pointed at his head or threatened by the Navy. …

4. The applicant again submitted that the Tribunal had rejected the applicant’s claims without evidence and on the basis of assumptions.  However, the Tribunal’s conclusions in paragraph 116 of its reason for decision flowed from its earlier reasoning in paragraphs 107 and 109 to 113 of its reasons for decision, which are as follows:

   107.The tribunal accepts that the applicant’s involvement of a local politician and the Minister for Fisheries in the matter would not have been looked upon favourably by the Navy. However, the tribunal finds the applicant’s evidence regarding his own and the Navy’s subsequent actions to lack plausibility and consistency.

   …

   109. The applicant’s evidence in relation to events that transpired after he got his boat has been vague and inconsistent. At the hearing he claimed that after the Navy officer put a gun to his head during the above mentioned incident, he stopped fishing out at sea but did bay fishing, for which he did not require a permit. However, as put to the applicant at hearing, this does not appear to have been his evidence to the department. The decision record does not indicate that the applicant gave evidence at his interview that he changed his area of fishing. Instead, the decision record indicates that he claimed that after his boat was returned, the Navy would sometimes refuse to give him a pass. The applicant’s evidence at hearing at no point indicated that he was denied a pass at any time after his boat had been returned to him.

   110. The tribunal notes that the applicant has consistently claimed he was threatened on three occasions before leaving Sri Lanka but his evidence on the circumstances of those three occasions has differed. His statement of claims refers to having a gun put to his head not long after getting his boat back, another incident when the Army came to the applicant’s mother’s home during which the applicant fell to his knees crying and the last threat, which is not described in his statement, having occurred one month before his departure.

   111. The decision record indicates the applicant’s evidence at interview was that his boat was confiscated and he was threatened at gunpoint by the Navy. After his boat was returned, he was threatened once at his mother’s house, once after the Navy stopped him on his bicycle and once in front of his house.

   112. In contrast, the applicant’s evidence at hearing before the tribunal was that the three times that he was threatened was when they confiscated his boat and beat him, when they put a gun to his head approximately 1 ½ months after he got his boat back and a month before he came to Australia. He claimed that the last (third) incident was when he was stopped on his bike. He further claimed that, at some other time before the last incident the Navy also came to his mother’s home and inquired about why he was not going out fishing. He claimed at hearing that he was also asked to report to camp on that occasion but that they did not beat him. The tribunal is unable to reconcile these inconsistent descriptions of the sequence of events.

   113. Despite these incidents being the alleged catalyst for the applicant leaving Sri Lanka in 2012, the applicant’s evidence about what was said to him by the Navy and what threats were made was vague. His evidence about when certain incidents happened, such as the Navy coming to his home inquiring why he has not been out fishing at sea, was also vague. The tribunal further finds the applicant’s claim that the Navy officers would attend the applicant’s mother’s home and inquire why he was not at sea to lack credibility. The tribunal does not accept the applicant’s explanation that the Navy wanted him to go to sea in order to harass and cause him further problems. The tribunal finds that if Navy officers were intent on causing the applicant problems, they would not have needed to use the excuse of the applicant going out to sea in order to do so.

5. In view of that reasoning, the Tribunal’s conclusions in paragraph 116 of its reasons for decision cannot be described as being without evidence or unreasonable in a legal sense.  The second aspect of ground 3 is not made out.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

2. In addition to the usual costs order, the Minister sought his costs of the second further amended application.   However, the Minister was not in a position to quantify those costs at the hearing.  Consequently, I will hear the parties on the question of costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  10 July 2018