BCS16 v Minister for Immigration
[2018] FCCA 1549
•15 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1549 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant claims Tribunal failed to inform him his claims were open to doubt – Applicant was on notice of the issues under review – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 424A |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1801 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | BCS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 984 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 30 October 2017 5 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Grinberg |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Hosking |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 984 of 2016
| BCS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is a further amended application filed 10 November 2017 wherein the Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 14 April 2016 wherein the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (‘the Minister’), made on 18 September 2013, not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The grounds of the further amended application are as follows:-
“1.The Tribunal’s decision dated 14 April 2016 is affected by jurisdictional error because the Tribunal failed to consider an integer of the applicant’s claim by failing to consider whether the applicant’s brother’s work for the LTTE raised the applicant’s profile and affected the applicant’s need for protection.
Particulars
a.The applicant claimed that his brother had worked as a driver for the LTTE.
b.The applicant’s claim in relation to his brother’s role in the LTTE was significant because, on the basis of the country information relied on by the Tribunal, it would put the applicant squarely within a category of persons who are assessed by the UNHCR as warranting protection. That is, as a person who is closely related to a former LTTE supporter who was involved in transporting LTTE personnel, or the supply and transport of goods for the LTTE.
c.The Tribunal accepted that the applicant’s brother had worked for the LTTE.
d.Having made this finding, the Tribunal was required to consider whether it raised the applicant’s profile and gave rise to a need for protection.
e.The Tribunal failed to consider this integer of the applicant’s claim.
2.The Tribunal’s decision dated 14 April 2016 is affected by jurisdictional error because the Tribunal failed to properly understand and therefore consider the applicant’s claim that three of the six boys that had been released from the camp in Jaffna had been arrested and disappeared and that a CID officer had told his sister-in-law that all of the boys were being taken into custody again and he was to be next.
Particulars
a.A claim of the applicant, made in written submissions to the Tribunal and before the delegate, was that he feared, if returned to Sri Lanka, that there was a real chance that he would be arrested and disappeared by the CID. This was because out of the six Tamil boys that had been released in Jaffna along with the applicant, three had been summonsed to the CID offices and never returned. A CID officer came to his sister‑in‑laws house and told her that the boys who had been released from the camp were being taken into custody by the CID again and that the applicant should report to their offices again.
b.Instead of considering this claim as made, the Tribunal considered only a claim that three of the people that were hiding in the forests with the applicant during the conflict were required to attend an interview with the CID and did not return, and the applicant said he was next, so he left [28].
c.The Tribunal misconstrued the applicant’s claim and, in doing so, failed to consider the claim as made by the applicant.
3.The Tribunal failed to accord procedural fairness to the applicant by failing to notify him that his claim in relation to the CID searching for him and interrogating his family since his departure from Sri Lanka, was open to doubt.
Particulars
a.An important part of the applicant’s claim was that since he had fled Sri Lanka, the CID had been searching for him several times at his brother’s house in Jaffna and his mother’s home in Vanni. The CID demanded from his family the applicant’s death certificate, or, if he is still alive, to be told of his whereabouts. The CID also interrogated his family about his involvement in the LTTE.
b.At the hearing, the Tribunal did not question the applicant in relation to this claim. Nor did the Tribunal indicate that this claim may be open to any doubt.
c.Rather, the Tribunal repeatedly reassured the applicant that it found him to be a credible witness and accepted his story.
d.Ultimately, the Tribunal did not believe the applicant’s claim that the authorities had continued to ask his family for his whereabouts and had interrogated them about his involvement in the LTTE.
e.The finding was significant to the Tribunal’s finding that the applicant was not of ongoing interest to the Sri Lankan Authorities, and subsequent rejection of the applicant’s claims for protection.
f.The Tribunal failed to put the applicant on notice that this important integer of his claims was open to doubt.
g. Accordingly, the Tribunal failed to accord the applicant procedural fairness.”
The Applicant relies upon the further amended application filed; an affidavit affirmed by Ms Alexandra Jannetto on 10 October 2017, to which is annexed a true copy of the transcripts of the audio recording on 4 February 2015, being the audio recording of the Tribunal hearing; and the Applicant’s submissions dated 10 November 2017.
The First Respondent seeks dismissal of the application and costs. The First Respondent relies upon the First Respondent’s contentions of fact and law of 18 October 2017, together with the First Respondent’s further submissions of 5 December 2017.
There is also before the Court the evidence as contained in the Court Book filed 25 October 2016.
Background
The Applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu religion. He arrived in Australia on 28 July 2012 without a visa. On 21 November 2012 the Applicant applied for the visa. On 18 September 2013 a delegate of the Minister of Immigration and Border Protection (‘the delegate’) refused to grant the Applicant the visa. On 24 September 2013 the Applicant applied to the then Refugee Review Tribunal (‘the RRT’) for a review of the delegate’s decision. On 25 March 2014 the Applicant provided a written submission to the RRT in support of his application.
On 4 February 2015 the Applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant was represented in relation to the review by his migration agent who attended the Tribunal hearing.
Following the hearing, and on 19 February 2015, the Applicant provided further written submissions to the RRT in support of his application. By decision dated 14 April 2016 the Tribunal affirmed the delegate’s decision.
The Tribunal and the Applicant’s claims
The Tribunal correctly set out in paragraph 6 of the Statement of Decision and Reasons (‘the Decision Record’) that the issue before it was whether the Applicant had a well-founded fear of persecution for one or more of the five reasons contained in the Refugee Convention; and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.
The Tribunal accepted that the Applicant was a national of Sri Lanka, who had left Sri Lanka legally in August 2010, and travelled to Thailand before later travelling to Malaysia and Indonesia and arriving in Australia in 2012.
The Tribunal noted in the Decision Record that the Applicant set out his claims in a statutory declaration provided with his visa application which was summarised by the Tribunal in the Decision Record in paragraph 12 as follows:-
“He is a young Tamil male. He and his family lived in Murusumoodai village, Kilinochchi, Northern Province, Sri Lanka, previously an LTTE stronghold.
In 2008 his family was displaced. He stayed and hid in the jungle, moving every few days with a few friends that were hiding with him.
In April 2009 he came out of hiding and went to the army controlled area of Arunaslam Camp in Vavunya to look for his family. He was often stopped and questioned why he was alone and not with his family. Because he was not with his family as a young male he was suspected of being a member of the LTTE. He was held, at times beaten and always questioned whether he was with the LTTE.
In October 2009 the army released him, his cousin and others from the camp to Jaffna because they could not confirm any involvement with the LTTE.
In Jaffna he was required to register and report regularly. He was questioned and released on most occasions but on two occasions he was tortured by the CID because they suspected him of being LTTE. He was released and then took a job in Kilinochchi with a mine disposal organisation as driver. Men in the army competed for his job. He felt unsafe and finally left Sri Lanka. Even though he has never been involved with the LTTE his life is in danger. Since he left Sri Lanka the CID (Criminal Investigations Department) regularly demand from his family the applicant’s whereabouts.”
The Tribunal noted further that the delegate also summarised the Applicant’s claims, including material from the interview with the delegate which the Applicant attended on 27 June 2013, to include the following, as set out in paragraph 13 of the Decision Record:-
“In March 2009 a shell fell on the house where his family lived; three of his cousins and a brother-in-law died in the incident and others sustained injuries. The injured were taken to a ship for treatment because the hospitals in the area had been shelled.
While he was in hiding around the end of the war, LTTE combatants hid amongst the Tamil civilians and attached themselves to noncombatants.
In late 2010, while in Jaffna, the CID summoned three of the six Tamils that were released with the applicant and they did not return. He was next called to attend the CID.
He left Sri Lanka legally in August 2010 and travelled to Thailand…”
The Tribunal considered whether the Applicant had a well-founded fear of persecution in Sri Lanka on the basis of his Tamil ethnicity and imputed pro‑LTTE political opinion; his Hindu religion; and his membership of a political social group, being a failed asylum seeker from a Western country.
The Tribunal noted the Applicant’s representative had provided written submissions on 25 March 2014 and referred to the relevant content of same. In particular, in paragraph 16 of the Decision Record, the Tribunal noted that the submission reiterated:-
“…the Applicant’s claims: of being interrogated and on several occasions beaten and assaulted by the CID; and that three of the six that were released to Jaffna with the applicant attended the CID and did not return. The submission adds that the applicant was also sexually assaulted when he was taken into custody by the CID; a claim he was ashamed to raise with his previous, female, lawyer. The applicant fears serious harm and even death at the hands of the Sri Lankan Army due to his Tamil ethnicity and suspicion of LTTE support as he spent numerous years in hiding and successfully escaped the country he would undoubtedly be imputed with pro-LTTE sentiments.”
The Tribunal Hearing
The Applicant gave oral evidence at the Tribunal hearing. Before the Tribunal he told of the suffering he, his family and many others had endured during the war in Sri Lanka. Those sufferings were detailed by the Tribunal in paragraph 21 of the Decision Record. They included, relevantly, in respect of ground 1 of this application, the following:-
“Since birth he lived in in [sic] Northern Province. The family was displaced during the war and the fighting was going on but until 2007 their life was not generally impacted.
Then aerial attacks and bombings killed children that were recruited by the LTTE. Each household was forced to give one child to the LTTE war efforts. The LTTE controlled all aspects of life in the area. His brother worked as a driver for the LTTE, they wanted to train him in the use of weapons but his brother did not like it so he left and came home; he took his girlfriend and went away. They wanted to take the applicant the applicant [sic] to join but his mother convinced them to leave him as he was the eldest and had to work the family farm.”
The Tribunal asked the Applicant during the course of the Tribunal hearing what it was he feared if he were to return to Sri Lanka. The Applicant responded that he had heard that the army continues to arrest Tamils; that he had never felt safe or protected in Sri Lanka; and that he may face threats to his life as he was questioned by authorities. He feared the Karuna group and the Eelam People's Democratic Party. The Tribunal asked why those groups would have an interest in the Applicant, and the Applicant responded “because he left the country without informing them, because he was not included on his parents’ register as he was not with them, and because there had been protests in the diaspora they will question him and suspect him of supporting the cause”. The Tribunal asked further if the Applicant was in contact with his family. The Applicant replied he spoke with them approximately once a week and had been in contact for three to four years. All his family were fine. His father was, “a little unwell and his married brother was undergoing mental health treatment.”[1]
[1] Decision Record dated 14 April 2016 at paragraph 24.
The Tribunal accepted the Applicant’s claims as to his past suffering and the displacement, questioning, beatings and torture that he had suffered. But the Tribunal did not accept that the Applicant had a well-founded fear of persecution in Sri Lanka on any of the grounds relied upon by him in the reasonably foreseeable future.
The Tribunal said at paragraph 25 of the Decision Record:-
“I indicated to the applicant that I do not doubt his story and all the claims of displacement, questioning, beatings and torture he suffered. Having regard to country information from several sources, including the DFAT reports, US Department of State, UNHCR of the events during the civil war and for a period after the end of the war in Sri Lanka, I accept the account of all the incidents he described and the suffering he endured, the beatings, the sexual abuse, the torture, the horrors he witnessed especially around the end and immediately following the end of the war; and the fear he experienced over a very long period of time. He impressed me as a credible and honest witness. He spoke fluidly and clearly and I did not perceive any attempt by him to embellish his claims regarding past incidents. I indicated that I sympathise with him for the unimaginable suffering he has experienced. He left Sri Lanka a little over a year after the end of the war. I accept too that he continues to have some subjective fears. I do not accept however that the authorities have continued to ask his family for his whereabouts on the basis that I am satisfied he was of no interest to the authorities and he departed Sri Lanka on a valid passport without incident, discussed further below.”
The further below included paragraphs 29 and 43 of the Decision Record are, relevantly, as follows:-
“29. I explained that my assessment of the risk to him is also based on his evidence that even at the end of the war, he was questioned and tortured as almost all the Tamil population in the north was but he was always released. He has consistently stated that he escaped the recruitment efforts by the LTTE and had no involvement. He was, as all Tamils in the North were, suspected. Soon after the end of the war, he was accepted and took a job working alongside ex-government soldiers clearing mines. He was able to renew his passport and depart Sri Lanka lawfully without incident even though, as he said, the authorities had a former LTTE operative placed at the airport to identify anyone with LTTE connections of interest to the authorities. His evidence was that his brother, who had worked for the LTTE, is leading a normal life running a tyre shop in the North. His own evidence strongly suggests that he was of no interest to the authorities in 2009 and 2010, at a time when several international reports indicate the government’s keen interest and efforts in rounding up any LTTE connected Tamils and reports of brutality were widespread. Given the recent reports of the circumstances under the current government, it may strongly suggest that he would be even less likely to be of interest to the authorities.
…
43. The Tribunal … has acknowledged that the applicant was questioned, beaten and abused in various ways around the end of the war. But it also notes that at the time of heightened security concerns and triumphalism most if not all of the Tamil population was suspected of LTTE connections and reports of brutality against the Tamils was widespread and condemned by the international community. Relevantly, I have also considered that the applicant consistently stated that he was not involved with the LTTE and while he was held, questioned and abused, he was always released. In his evidence to the Tribunal the applicant stated that at the time he was placed in camps, he was aware that the authorities held those suspected of LTTE involvement in separate camps. The DFAT information also refers to Tamils with such profiles being held in rehabilitation camps. The applicant was not separated into one of those camps. It also appears that it would be unlikely that he would have been accepted to work alongside former Sri Lankan soldiers in clearing mines, nor would he have been able to easily renew his passport and depart Sri Lanka through the normal channels at the international airport in Colombo without incident. DFAT advice indicates that the CID maintain a presence and have involvement in border control at the airport. The applicant also stated that a former LTTE man was engaged to collaborate with the authorities to identify any LTTE persons that might be of interest to the authorities. The applicant departed on a valid passport and without incident.”
The Tribunal indicated to the Applicant (as referred to in paragraph 26 of the Decision Record) that current country information from various credible sources and a number of governments, including the Australian DFAT report on Sri Lanka, the circumstances in the North and the conditions for the Tamils indicated significant improvements, particularly under the current government. On the basis of that country information, the Tribunal indicated to the Applicant that it “may not accept that in the foreseeable future there is a real chance the applicant would suffer serious or significant harm because of his Tamil ethnicity as a young Tamil or for imputed political opinion supporting the LTTE.”[2]
[2] Decision Record dated 14 April 2016 at paragraph 26.
The Tribunal noted in paragraph 27 of the Decision Record that it was concerned by the Applicant’s evidence that while he was in Jaffna three of the six Tamils that were hiding with him during the conflict were summoned by the CID and did not return and that the Applicant was told that he would be next. The Tribunal said specifically:-
“ I considered the applicant’s evidence that after he was released and living in Jaffna three of the people that were hiding in the forests with him during the conflict were required to attend an interview with the CID and did not return; and he said he was next, so he left. This gave me concern. However, there is no information before the Tribunal whether those three had a profile of interest to the authorities or why the applicant did not see them again. I also considered his evidence that he registered alone and not with his immediate family because they were separated. The authorities then suspected persons that registered in this way to have been LTTE members or combatants. My concerns were outweighed by the applicant’s other evidence and relevant reports and information available to the Tribunal discussed further below, all of which lead to the conclusion that he was not suspected of involvement with the LTTE.”
The Tribunal thereafter noted a number of matters that led it to conclude that the Applicant would not be of interest to the Sri Lankan authorities if returned to Sri Lanka. They were as contained in paragraph 29 of the Decision Record as referred to in paragraph 19 above.
In response to the Applicant’s comments as to his brother being left alone by the authorities because of his mental health issues, the Tribunal noted in paragraph 32 of the Decision Record that it did not doubt the Applicant brother’s mental health issues, but his assessment of the circumstances for the Applicant on return to Sri Lanka did not rely on that one example, it relied on numerous country information reports. The Tribunal also acknowledged that it had repeatedly accepted the Applicant’s account of “having suffered torture in the past”.[3]
[3] Decision Record dated 14 April 2016 at paragraph 32.
The Tribunal found, on the basis of country information before it, including the United Nations High Commissioner for Refugees’ (UNHCR) December 2012 eligibility guidelines for Sri Lanka (both of which the Tribunal did not consider exhaustive) that the Applicant did not have a profile of real or perceived links to the LTTE that may give rise to international refugee protection. Likewise, the Tribunal found the Applicant not to have a profile of the kind identified by the UK Upper Tribunal as warranting protection.
The Tribunal said in conclusion:-
“45. I have considered the applicant’s claims as a Tamil, a young Tamil and a Hindu separately and cumulatively. On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm amounting to a well-founded fear of persecution in the reasonably foreseeable future because of his Tamil ethnicity or as a young Tamil male and a Hindu, or because or of being imputed with political opinion.”
The Tribunal also considered whether the Applicant would face harm if he were to return to Sri Lanka as a failed asylum seeker and the country information in relation thereto. The Tribunal concluded that the Applicant was of no interest to the authorities in Sri Lanka and nor of any interest to the Karuna group or the EDPD. The Tribunal found the Applicant to have no role or involvement with the LTTE whilst in Sri Lanka nor since his departure from Sri Lanka which would raise any interest by the authorities of any activities in the diaspora. The Tribunal said at paragraph 55 of the Decision Record:-
“55. I have considered whether the applicant will face a real chance of serious harm on the basis of his claim separately and cumulatively - if the effect of each claim separately or the combined characteristics of being a Tamil, young Tamil male and Hindu, actual or imputed political opinion suspected of LTTE connections and returning involuntarily as a failed asylum seeker from Australia would mean that there is a real chance of facing serious harm. Given the above findings I do not accept that there is a real chance the applicant will face serious harm for reasons of political opinion, race, religion, nationality or membership of a particular social group if he were to return to Sri Lanka now or in the reasonably foreseeable future. I have also noted the applicant’s evidence that he lost his mine clearing job because preference was given to Sinhalese ex-soldiers. I have accepted that as a Tamil the applicant is likely to suffer low levels of economic and social discrimination but this does not rise to the level of serious or significant harm. I do not accept that the applicant will be unable to find any employment leading to an inability to subsist.”
As the Tribunal found the Applicant did not have a well-founded fear of persecution in Sri Lanka and that the Applicant would not face a real risk of significant harm if returned to Sri Lanka, the Tribunal found that the Applicant did not satisfy the criteria in s.36(2)(a) or (aa) of the Act. There was no suggestion that the Applicant satisfied the criteria in ss.36(2)(b) or (c) of the Act.
Ground 1
The first ground, in essence, is that the Tribunal failed to consider whether the fact that the Applicant’s brother had worked for the LTTE raised the Applicant’s profile and affected the Applicant’s need for protection.
The Minister accepts that, where the Tribunal fails to deal with a “substantial, clearly articulated argument relying upon established facts”, or a claim that clearly arises from the material before it, the failure to deal with the claim may constitute jurisdictional error, if the claim is one which, if resolved in one way, would or could be dispositive of the review.[4]
[4] Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1801; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263.
As conceded by the Applicant, this claim was not however, one which was clearly articulated, nor does the Court find it was a claim that clearly arose on the materials, including the country information that was before the Tribunal. It could not be construed to so arise. As was said by Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at paragraph 15:-
“The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]-[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated... From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it; NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.”
There was evidence before the Tribunal that the Applicant’s brother had worked for a short time as a driver for the LTTE. This was for a period of three months in 2007. The Applicant did not raise a claim, however, that because his brother had so worked, this fact might raise the Applicant’s risk profile on return to Sri Lanka.
To the extent that such a possibility arose from the material before the Tribunal, the Minister submits that the Tribunal clearly considered the fact that the Applicant’s brother had worked as a driver for the LTTE and took this into account in assessing the Applicant’s claims to have a well-founded fear of persecution in Sri Lanka by reason of his Tamil ethnicity or an imputed pro-LTTE political opinion. The Court accepts that submission.
The Tribunal did take into account the fact that the Applicant’s brother had worked as a driver for the LTTE in its overall consideration as to whether the Applicant would be of any interest to the Sri Lankan authorities upon any return to Sri Lanka. It is clear that the Tribunal did not consider that fact to increase any risk to the Applicant in terms of his profile with the Sri Lankan authorities.
The evidence taken into account by the Tribunal was:-
a)that the Applicant’s brother had worked as a driver for the LTTE for two or three months in 2007 being some two years before the end of the civil war;
b)during that time, the LTTE asked the Applicant’s brother to do weapons training;
c)the Applicant’s brother did not like this so he left the LTTE and went home;
d)the Applicant’s brother is married with two children and currently leading a normal life running a tyre shop in Sri Lanka; and
e)the Applicant’s brother is currently undergoing treatment for mental health issues.
The Tribunal’s actual finding that the Applicant’s brother was apparently not of any interest to the Sri Lankan authorities despite his own direct involvement with the LTTE was in the context of the Tribunal setting out its reasons for why it thought the Applicant would not be of interest to the Sri Lankan authorities on return to Sri Lanka on the evidence before the Tribunal.
This ground cannot be made out.
Ground 2
The second ground as raised by the Applicant is that the Tribunal misunderstood and therefore failed to consider the Applicant’s claim that three of the six Tamils that were released in Jaffna with the Applicant were summoned by the CID and did not return and that the Applicant was told that he would be summoned next.
The Tribunal was clearly aware of this claim. The Tribunal set it out in paragraph 13 of the Decision Record (which is referred to in paragraph 12 above of these reasons) and paragraph 16 of the Decision Record wherein the Tribunal said, relevantly:-
“The submission reiterates the applicant’s claims; of being interrogated and on several occasions beaten and assaulted by the CID; and that three of the six that were released to Jaffna with the applicant attended the CID and did not return ...”
The Tribunal clearly dealt with this claim in paragraphs 27, 29 and 43 of the Decision Record. These paragraphs appear in paragraphs 19 and 21 above. The Minister acknowledges that in paragraph 27 of the Decision Record the Tribunal refers to “three of the people that were hiding in the forests with him”, which is not factually accurate, in that the three persons claimed by the Applicant to have not returned from an interview with the CID were in a group of six with the Applicant after he was released and living in Jaffna. That factual misstatement, however, was not the Tribunal committing jurisdictional error. When the Tribunal decision is read as a whole and fairly, it is clear that what it was the Applicant claimed was understood by the Tribunal and that the Tribunal throughout directed its attention to the claim made. The Tribunal’s reference to “hiding in the forests” had no consequence in respect of the Tribunal’s decision.
The Tribunal in paragraphs 13 and 16 of the Decision Record correctly identified the six persons released to Jaffna with the Applicant and in paragraph 27 of its Decision Record, it is clear that the Tribunal understood that the relevant time of which the Applicant was speaking, was the time after his release and the release of six other people with him into Jaffna, whereupon three of the people who had been released from the camp with the Applicant were summoned by the CID and did not return. The Applicant was told he would be next, so he left Sri Lanka. The Tribunal clearly accepted the evidence of the Applicant and expressed its concern, although went on to find that its concern was outweighed by the Applicant’s other evidence and relevant reports and information before the Tribunal.
This ground cannot be sustained. The proper inference to be drawn from the Tribunal’s Decision Record, read as a whole, is that the Tribunal did not misunderstand, misconstrue or fail to consider the Applicant’s claim.
In further submissions and ground of review made by the Applicant, the Applicant claimed that he had placed before the Tribunal a claim to fear harm on the basis that he was a member of the group of six released from the camp in Jaffna. That was not a claim articulated by the Applicant and nor did it arise on the material. The claim was not the Applicant’s membership of a group of six, or six others and the Applicant, but rather the Applicant’s suspected connection to the LTTE.
Ground 3
This ground also must be dismissed.
The Applicant’s additional ground, as raised by him in his further amended application, was that the Tribunal failed to afford him procedural fairness because it failed to put him on notice that it doubted his claim that after his departure from Sri Lanka the CID had continued to ask his family where he was.
The Applicant’s claim, the subject of this ground, was set out in his statutory declaration dated 19 November 2012 as follows:-
“Since I fled Sri Lanka, my brother’s wife has told me that the CID have come several times searching for me at her home in Jaffni and my mother’s home in Vanni. The CID have demanded of my family my death certificate if I have died; or my whereabouts if I am still alive. The CID interrogate my family about my involvement with the LTTE…”
The delegate summarised the claim as follows:-
“The Applicant stated that the CID have been visiting his mother and asking as to his whereabouts alleging to his mother that the applicant must have been with the LTTE and that is why he left Sri Lanka.”
This claim was noted by the Tribunal at paragraphs 12 and 25 of the Tribunal Decision Record.
The Applicant gave extensive evidence at the hearing before the Tribunal about what had happened to him before he left Sri Lanka. He did not repeat the claim the subject of this ground at the hearing before the Tribunal.
The transcript in respect of this ground is revealing. At transcript pages 34 to 37 the Tribunal referred to its acceptance of the Applicant’s claims as to what it was that he had experienced in Sri Lanka. The transcript is relevantly, as follows:-
“SENIOR MEMBER:…We are all acutely aware of what was going on during the war, especially in the closing stages in the war. I don’t doubt any of your story at all. It’s a slightly different version from what I read, really the difference is immaterial. I accept your story. I accept what you have told me, what you experienced in Sri Lanka. And I can understand that at some point you have perceived a real fear and you felt you wanted to leave Sri Lanka in 2010. But as you - and we all are aware - the situation now in 2015 is somewhat different, so let me ask you this, what is it that you fear now if you were to return to Sri Lanka - just suppose you were to return to Sri Lanka? What do you fear?
INTERPRETER: We - from my birth, I lived in the (indistinct) area and the way these governments have changed and all governments never gave protection to the Tamils, now how can I expect even the current government will protect me? They failed to protect me.
SENIOR MEMBER: If you just look just into the future. Just suppose you go now. Now, I am assuming that you are aware of the changes in the time that has passed. The war is over and immediately after the war it was very difficult for many people in Sri Lanka, we know that from reports. But that has changed now.
INTERPRETER: Even now I meant I as a responsible, I read even recently I read that even after the new government changed and the army arrested Tamil youth in Jaffna and still there is - there is no security for Tamils in Jaffna.
SENIOR MEMBER: What do you yourself personally, if you were to return, what do you think will happen to you?
INTERPRETER: I fear I may face a threat for my life.
SENIOR MEMBER: Why, on what basis?
INTERPRETER: Because I lived in the (indistinct) area and subsequently now I - you know, I’ve been to the camp and after release also, I faced a lot of threats from the authorities, I was questioned. And I fear for my life. Before that, people disappeared, people in my situation. And there are many groups operating; I can face danger from any one of these groups.
SENIOR MEMBER: Well, which groups specifically? Can you tell me what groups you’d believe to be a threat to your life?
INTERPRETER: There is - there was one specially that called Karanam group and they spring from the LTTE and they are working with the government. And similarly, they are from the east and from the north, there was a group called EPDP (indistinct) is currently minister and his group is working with the authorities and they are persecuting them.
…
SENIOR MEMBER: Yes, why would they have any interest in you? If you return to Sri Lanka you say you fear the Karuga group and the EPDP group, why would they have any interest in you to harm you?
INTERPRETER: The first reason is after the war I left the country; I left the country and sought asylum. After the war, after the solution of the LTTE problem, we left the country. So, I - sorry, let me ask him again - okay. Then I was re-billeted, or resettled in the original place; I was at a camp and then we were resettled. So, the (indistinct) is a lot of - not many members, former members, had supporters or left the country. So, there’s a (indistinct) protests and lots of things happened in the outside countries, the diaspora, and if I go back they will suspect me that I have - I am still supporting the cause, leading from other countries.
That’s number one. Number two is, because we left the country due to the problems, I think they will there find – they’ll find - to find an excuse, they will research our background. The CID will held my previous records, because they already - I have been really regularly questioned in Jaffna, and I have left the country without informing them, so they will, after enquiries, enquiry me, they’ll put me under (indistinct) stress. So, now if I - the first thing - the thing is, this is the (indistinct) I have from CID, they will question me and they will continue to suspect me and say, “You left the country because you were suspected.” And, “Why did you leave the country? Did you work with the LTTE sympathisers?” So, where is the protection for me then?
Another problem is, because I did not - in the - I was not included my name not included in my mother and her parents registration while we were in the camp, I cannot prove to them that I was with them. My parents are thinking - may have some fears, they did not - they could not register my name in the camp. After coming, when they came looking for me, they always said they didn’t know where I am, and if they suddenly go, they’ll think I was hiding from (indistinct) before, so that will create the huge problem for me.
…
SENIOR MEMBER: I don’t have that much authority (indistinct) I understand what you’re saying. Now, you said that - I think you indicated somewhere that you’ve been in touch with the family since you got to Australia.
WITNESS: Yeah.
SENIOR MEMBER: What is your understanding from them, from talking to them? Say, when was the most recent time you spoke to your family?
INTERPRETER: After I lost touch with my parents when I left I had no contact. But after that they moved to Jaffna; through my relatives I came to know, and I established contact quite recently.
SENIOR MEMBER: Have you spoken to your family recently or (indistinct)
INTERPRETER: Yeah, last week, I talked to them.
SENIOR MEMBER: So, how often do you think (indistinct) have this contact? Do you talk to them reasonably regularly?
INTERPRETER: After reaching - of leaving the country, I established contact with my parents. Over the last three or four years, I am in touch. I talk to them; generally, once a week, I talk to them and usually I don’t work on weekends, so weekends I talk to them.
SENIOR MEMBER: And how are they, firstly?
INTERPRETER: They’re okay, except father is very sick.
SENIOR MEMBER: And the rest of the family, your brothers and sisters, are they okay?
INTERPRETER: My one brother and sister with the mother, my parents, another two got married (indistinct).
SENIOR MEMBER: Yes. And your brother has got a tyre repair shop; he’s okay?
INTERPRETER: He’s okay. But he is undergoing mental health treatment; I want to submit some document for that.
SENIOR MEMBER: What do you want? Yes (indistinct) meeting that you had some documents. That’s your brother, is it?
INTERPRETER: The one who got married.
SENIOR MEMBER: Is this a copy? I can easily make a copy.
INTERPRETER: I will have (indistinct) made, you can have it.”
Further toward the end of the hearing the Tribunal said at pages 38 to 39 of the transcript:-
“I accept what you told me about living in controlled areas and then moving to Jaffna... I accept what you’ve told me about all the experiences that you had, and your perceived fear when you left in 2010.
…
But we understand from the country reports that the authorities in Sri Lanka now are not really interested in people who may have an unavoidable association with the LTTE when they lived in the north, and the LTTE was running every aspect of life in the north.
…
In your case, you, in various places telling your story, were not at all associated with the LTTE; you had no association, you managed to avoid being recruited by them. And while I accept you were questioned, the fact that you were always released and they had no further interest in you further indicated the authorities had no interest in you, even immediately after the war, except to question, as they were questioning everyone.
You also told me that you, in fact, renewed your passport in January 2010, very soon after the end of the war. And, you travelled legally on that passport out of Colombo International Airport, where you said they had specifically a man from the LTTE to identify people who might have been associated with the LTTE, and tell the authorities. You got through that, and you travelled without difficulty, other than the regular questioning.
Now, it’s for these reasons... that I may not accept that the authorities in Sri Lanka have an interest in you at all, in terms of any imputed political opinion, or because you’re a Tamil. For these reasons, you had almost free movement: you could travel from the north to Colombo, you had no difficulty; you got your passport; you travelled legally.”
Thereafter, the Tribunal again indicated to the Applicant during the course of the hearing that he accepted all of the Applicant’s story but that:-
“I may not accept that there is a real chance of that happening in the foreseeable future because of any of these reasons.”
Finally, the Tribunal said, transcript page 43:-
“I believe what you said about what happened to you in the past. The task that is required of me is to see, having regard to everything that you’ve told me that happened in the past, whether in the foreseeable future there’s a real chance of you facing serious or significant harm for a Convention reason or under complementary protection.”
Consideration of Ground 3
At the time of the Tribunal’s decision, s.422B of the Act provided that Division 4 of Part 7 of the Act:-
“...is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
Under s.424A of Division 4 of Part 7 of the Act, the Tribunal was required to give the Applicant an opportunity to comment on information that it considered:-
“...would be the reason, or a part of the reason, for affirming the decision that is under review…”
Such obligation did not extend to the Tribunal’s “subjective appraisals, thought process or determinations”.[5]
[5] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
In any event, the Applicant was, contrary to what the Applicant asserts, on notice that an issue in relation to the Tribunal’s decision was whether the Applicant would be of interest to the Sri Lankan authorities on return to Sri Lanka. The Tribunal clearly put that to the Applicant in the passage from the transcript extracted in paragraph 49 above.
The Applicant’s claim, that after his departure from Sri Lanka the CID continued to ask his family where he was, was directed by the Applicant to evidence which went to whether he was of interest in an ongoing way to the Sri Lankan authorities. The Tribunal found that he was not, on the totality of the evidence before it. I accept the submission of the First Respondent that contrary to the Applicant’s assertions the Tribunal did not represent to the Applicant that it accepted any part of his evidence about what happened to his family after the Applicant departed Sri Lanka. The Tribunal’s acceptance of facts raised by the Applicant related to that which happened to him and his family prior to his departure.
The Court finds that the Applicant was clearly on notice of the issues arising in relation to the decision under review and no jurisdictional error attends this ground of review.
On the basis of the above, the application must be dismissed and costs will follow the event.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 15 June 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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