BDQ15 v Minister for Immigration
[2017] FCCA 162
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDQ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 162 |
| Catchwords: MIGRATION – Application for protection visa – whether the Tribunal failed to deal with an integer of claim made by the Applicant – whether the Tribunal failed to take further steps to make an obvious inquiry about a critical fact relevant to its statutory functions under review – whether the Tribunal misconstrued or misstated the Applicant’s evidence – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), sub-ss.36(2)(a), 36(2)(aa) |
| Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | BDQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1437 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 12 October 2016 |
| Date of Last Submission: | 12 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Applicant’s Further Amended Application for judicial review filed 26 September 2016 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1437 of 2015
| BDQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 26 May 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a male citizen of Sri Lanka, who is of Tamil ethnicity and Hindu religion. He claims that his family fled to Killinochi when he was nine years old, but moved to Mannar after four years due to fighting between the Liberation Tigers of Tamil Eelam (“LTTE”) and the Sri Lankan Army. He also claims that, because the LTTE were recruiting young Tamil men, in 2007 his parents sent him to live in Colombo, where he lived with his relatives and worked in a factory and as a taxi driver.
The grounds for judicial review, specified in the Applicant’s Further Amended Application, raise two issue for determination by the Court:
a)whether the Tribunal failed to consider an integer of the Applicant’s claim, that he remained of adverse interest to the Sri Lankan authorities after he was released on bail following his arrest by the Criminal Investigation Division (“CID”) on 27 October 2008 on suspicion of being a member or supporter of the LTTE, because the Tribunal failed to make an obvious and critical enquiry in relation to what was meant by the reference contained in Court documents provided by the Applicant, that the Applicant be released “on appropriate bail”; and
b)whether the Tribunal misconstrued corroborative evidence, provided to it by the Applicant, in the form of a complaint made by his father to the Human Rights Commission of Sri Lanka (“HRCSL”).
The Applicant’s Claims
The Applicant’s claims and evidence that he was owed protection obligations by Australia are to be found in his statutory declaration attached to his application for the visa (CB 63-68) which included:
a)a translated copy of a report on investigation of an offence by the Sri Lankan police, dated 27 November 2008, to the Magistrate (CB 1-7);
b)a written submissions made by the Refugee and Immigration Legal Centre Inc (“RILC”) on the Applicant’s behalf, dated 24 September 2013 (CB 102-112), which included a translation of a complaint made by his father to the HRCSL and a translation of correspondence from the HRCSL, which acknowledged receipt of a complaint dated 29 July 2013 (CB 112-116);
c)a written submission by RILC to the Tribunal dated 2 January 2015 (CB 186-195);
d)an updated statutory declaration dated 23 December 2014, which was sent to the Tribunal (CB 196-200); and
e)a post-hearing submission dated 2 March 2015, which was provided to the Tribunal by RILC, on behalf of the Applicant, in response to correspondence from the Tribunal inviting comment on or response to adverse information (CB 225-252).
In his statutory declaration dated 4 December 2012 (CB 63-68), the Applicant made the following claims relevant to these judicial review proceedings:
a)his problems commenced after he met a Sinhalese man who drove a three-wheel cycle, which he parked outside the front of the Applicant’s relatives house in Colombo;
b)on 27 October 2008, the Applicant, two of his brothers and three of his friends were arrested on their way to a temple on a Hindu festival day. They were approached by four CID officers;
c)they were interrogated about their links to the LTTE and during the course of the interrogation, they were beaten and tortured. His right index finger was cut with scissors. They hung his legs from the ceiling. He was interrogated by five different groups of officers. While he was in detention, the International Committee of the Red Cross (“ICRC”) visited them. The CID officers threatened not to tell the ICRC about what had happened and how they were treated;
d)the arrest was reported in a Sinhalese newspaper;
e)during the course of his detention, he saw the Sinhalese driver walking past and realised he was a CID officer;
f)during his detention, he became convinced that his friends were all associated with the LTTE, as their interrogation was more severe than his. The CID discovered various compromising photographs on his friends’ email accounts and, although they denied supporting the LTTE, after being released they disappeared the next day without saying anything to the Applicant;
g)“on or about 27 November 2008, the Court found that [they] had no connection with the LTTE and released [them]” (CB 65 at [14]), however they were ordered by the CID to report to the CID every day until further notice;
h)he reported to the CID every day for the first two weeks subsequent to his release, but as he was fearful that he would be arrested again, he went into hiding and stayed in a plastic factory;
i)during his period of hiding he went to India for a short period and visited his family in Jaffna around five times;
j)during his period of hiding, the CID went to his uncle’s house three times asking about his whereabouts. His uncle and his father were interrogated about him. They were informed that the Applicant had committed a very serious crime and that his punishment would be severe if he did not hand himself in; and
k)at the beginning of December 2011, the Applicant’s mother called him and told him that two of his friends, who had been arrested with him in 2008, had been taken by unknown people while they were hiding in Jaffna. The Applicant believes that they were from the CID.
The report to the Magistrate, dated 27 November 2008, is a report by the Officer in Charge of the Wattala Police (“the Court Document”). It identified that six persons, including the Applicant, were arrested and questioned “upon the intelligence reports received of their involvement in terrorist activities.” The report concluded that (CB 5):
The investigations carried out so far have not revealed any information linking these suspects to terrorist activities or other crimes. Therefore I request the Hon court to release them on appropriate bail.
In written submissions made by the RILC on the Applicant’s behalf, dated 24 September 2013, the Applicant’s claims to fear persecution were for reasons of (both separately and cumulatively) (CB 102-103):
a)his Tamil ethnicity, his membership of particular social groups, “young Tamil males” and/or “young Tamil male’s from Northern Province”;
b)his actual and/or imputed political opinion in support of the LTTE as a result of his Tamil ethnicity;
c)his profile as a young Tamil male from the North of Sri Lanka, his associations with former LTTE members;
d)his past Court proceedings and arrest as a result of being suspected of assisting LTTE members;
e)his illegal departure from Sri Lanka and asylum claim in Australia; his membership of a particular social group “young Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully”; and
f)his membership of a particular social group “‘victims of human rights violations in Sri Lanka seeking justice’ due to his father’s letter to the human rights commission”.
It was submitted that the Applicant also met the complementary protection provisions under the Migration Act 1958 (Cth) (“the Act”) (CB 112).
Relevantly, to this judicial review, the submission stated (CB 105):
We refer to the delegate’s concern that the court ordered that the applicant was not engaged in terrorism activities due to lack of evidence. In our submission, what the evidence establishes is that the applicant was previously arrested by the Sri Lankan authority due to them believing that the applicant had links with LTTE. The evidence provides that the police found that there was “no evidence to proceed”, and further, it requested that the applicant be released on “appropriate bail”, which indicates their intention to continue investigation. We refer to the evidence provided by the applicant that he was required [to] report to the police station regularly. This is consistent and plausible given the above evidence that the police requested “appropriate bail”.
Further, there is no clear indication in the evidence that the applicant was acquitted from the suspicion. In our submission, this evidence should be taken to strongly support the applicant’s claim that he was under the strict surveillance of the CID.
The written submissions attached a copy of a card issued by the HRCSL (CB 113), a translation of the complaint dated 29 July 2013 made by the Applicant’s father to the HRCSL (CB 114-115), and a receipt issued by the HRCSL informing the Applicant’s father that his complaint dated 29 July 2013 had been registered under a particular number (CB 116). In his complaint to the HRCSL, the Applicant’s father relevantly said that his son:
… [w]as arrested by Sri Lanka Investigation Division in 2008 upon suspicion. They released him only after we paid money. After that also, they came and questioned him. Because of these inquiries, he was hiding and finally left the country. But the Investigation Division did not accept this and they invited me, beat me, questioned me and asked me to sign their books. This process has been continuing.
My son was arrested along with five persons. Of them, so far two persons have been missing …
In written submissions dated 2 January 2015 made to the Tribunal by the RILC, the Applicant repeated his claims to fear persecution and significant harm (CB 186-195). The submission addressed issues of credibility raised by the delegate in his decision to refuse to grant the visa. Further submissions were made, including country information in relation to the Applicant’s claim. An updated statutory declaration made by the Applicant, dated 23 December 2014, was included (CB 196-200). In this statutory declaration, the Applicant claimed that, around September 2014, his father was interrogated by the CID about his whereabouts. The Applicant was told about this in November 2014. He claimed that his father was interrogated because the CID and Sri Lankan authorities are still looking for him. He also claimed that the CID went to his former manager of the taxi-cabs he was driving, asking about his whereabouts. He claimed that the CID officer who arrested him in 2008 has been promoted, is now one of the senior officers in the Gampaha district and has many officers working under him. The Applicant claims that this makes him more of a target then he previously was. The Applicant addressed the delegate’s findings regarding his capacity to travel to India, and the delegate’s finding that he did not leave Sri Lanka illegally.
A Tribunal hearing was held on 8 January 2015 following which the Tribunal sent correspondence to the RILC, dated 12 January 2015, inviting comment or response to identified information that the Tribunal considered might be a reason or part of the reason for it affirming the decision under review (CB 207-211). The information referred to various inconsistencies between the Applicant’s evidence given at his entry interview on 13 October 2012, his statutory declaration attached to his visa application and evidence given during the Tribunal hearing, including information about his arrest and the circumstances in which he was arrested.
On 2 March 2015, a further hearing was held and a post-hearing submission was sent to the Tribunal by the RILC, on behalf of the Applicant’s, responding to and commenting on information identified in the Tribunal’s correspondence dated 12 January 2015 (CB 225-252).
Tribunal Decision
In its decision dated 26 May 2015, the Tribunal did not accept, on the evidence before it, that the Applicant’s claims satisfied the criterion under sub-s.36(2)(a) or sub-s.36(2)(aa) of the Act (CB 267-287). The following paragraphs set out the Tribunal’s reasoning and findings, in so far as is relevant to the Applicant’s grounds of judicial review.
The Tribunal expressed significant concerns regarding the Applicant’s evidence about his claimed arrest in 2008 (CB 270-277 at [12]-[33]). The Tribunal identified its concerns in some detail, regarding the inconsistencies in the Applicant’s evidence in relation to the circumstances of his arrest in 2008, his explanation for his ability to leave and re-enter Sri Lanka and his adherence to the reporting requirements imposed on him following his release on bail. In respect of these reporting requirements, it is noted by the Tribunal that the Applicant claimed at the Departmental interview that he reported for a period of one month, in his statutory declaration, he claimed that he reported for period of two weeks and at the Tribunal hearing, he claimed that he reported for a period of one week (see CB 273 at [22]). Other concerns of the Tribunal included inconsistencies in his evidence about his relationship with those he alleged that he drove around in his taxi-cab in Jaffna, subsequent events affecting his co-accused, his claim that he hid at the plastic factory and the hacking of his friends’ emails. The Tribunal described the Applicant’s evidence about where he lived or went into hiding after his release as, “so inconsistent as to not be credible” (CB 275 at [31]).
The Tribunal found (CB 277 at [34]):
As a result of the above concerns, when considered cumulatively, the Tribunal is not satisfied that the applicant has been truthful in relation to his claims. The Tribunal is not satisfied that after his release the applicant was required to report to the CID, that he went into hiding or that he was of adverse interest to the CID. On the basis of the court document provided and the applicant’s consistent evidence across a number of interviews, the Tribunal is willing to give the applicant the benefit of the doubt and accepts that he was arrested on 27 October 2008 and held for a month, along with his two brothers, on suspicion of LTTE links. The court document states that there is no information linking the applicant (and his co-accused) to terrorist activities or other crimes and the applicant states in his written statement that “the Court found that we had no connection with the LTTE and they released us”. Although the document refers to them being released on “appropriate bail” it does not state what this was. For the reasons set out above, the Tribunal is not satisfied that the applicant was required to report to the CID or that he was of adverse interest to the authorities after this. Therefore, the Tribunal finds that the applicant was cleared of any links to the LTTE, that he was not the subject of any adverse attention from the Sri Lankan authorities from November 2008 until his departure in 2011 and he does not hold a pro-LTTE profile in Sri Lanka. The Tribunal notes that the arrest of the applicant occurred during the civil war and country information (as discussed below) suggests that there has been a significant change in the situation for Tamils since the end of the war. The Tribunal does not accept that his detention once in 2008 indicates that he would again be imputed with a pro-LTTE profile if he was to return now, some 7 years later.
With respect to the Applicant’s claim that his father was detained, questioned and mistreated because of the authorities’ interest in the Applicant, the Tribunal found (CB 277 at [35]):
… As set out above, the Tribunal does not accept that the applicant was of adverse interest to the authorities after his release in November 2008. It follows that the Tribunal is not satisfied that the authorities would be questioning the applicant’s father about [sic] in 2009, 2013 and 2014. This conclusion is supported by the fact that the applicant’s written statement provided with his protection visa application makes no reference to the applicant’s father having been detained and questioned and beaten and his statement in December 2014 only refers to his father being interrogated on one occasion.
With respect to the Applicant’s father’s complaint to the HRCSL, the Tribunal did not accept that a copy of the receipt issued by the HRCSL was probative evidence for the reason that the receipt did not say what complaint it related to. The Tribunal further stated (CB 278-279 at [40]):
… As discussed above, the Tribunal is not satisfied that the applicant was of adverse interest to the authorities after his release or that his father was questioned and beaten as a result. Therefore, like the delegate, the Tribunal is not satisfied that there was any reason for the applicant’s father to lodge a complaint relating to the applicant in July 2013.
Further, the Tribunal was not satisfied, even though it accepted that the father may have lodged a complaint with the HRCSL, that the Sri Lankan authorities would be aware of this complaint. The Tribunal noted that the Applicant agreed with this and found (CB 279 at [41]):
… It follows that the Tribunal is not satisfied that there is a real chance of the applicant being harmed as a result of his father’s complaint to the Human Rights Commission.
Judicial Review
Ground One
Ground one of the Applicant’s application for judicial review is as follows:
The Tribunal failed to determine the review application according to law.
Particulars
a) The Tribunal failed to deal with an essential integer of the Applicant’s claim by not determining whether his release on “appropriate bail” would put him at risk of serious or significant harm if he were returned to Sri Lanka.
b) The Tribunal equated the granting of bail with the Applicant being exonerated of the allegations of support for the LTTE rather than a temporary measure pending further investigation.
c) The Tribunal did not make findings as to whether the applicant would be at risk of serious or significant harm because he did not comply with his bail.
In his written submissions, the Applicant argues that the Tribunal failed to deal with an integer of the Applicant’s claim that he was of continuing interest to the Sri Lankan authorities because of their suspicions about his involvement with the LTTE. The Applicant submits that this claim meant that he had a profile which placed him at risk of significant harm upon return to Sri Lanka. The Applicant submits that this integer of claim was clearly expressed in the written submissions, dated 24 September 2013, made on his behalf by the RILC (CB 105) (the relevant part of the submission is extracted at [7] above). That is, the Applicant claimed that the Court Document (referred to at [6] above) established that the Sri Lankan authorities intended to continue their investigations. In oral submissions, Counsel for the Applicant submitted that the Tribunal’s finding that the Applicant was “cleared of any links to the LTTE” (CB 277 at [34]) was not open to it in circumstances where the Court Document provided by the Applicant referred to him being released on “appropriate bail” and where the document specifically referred to “the investigations carried out so far”. The Applicant argued that it is evident from this statement that the police intended to continue their investigations. It was further argued that the Applicant’s failure to comply with his bail conditions raised a real possibility that the Applicant would be on a watch list on arrival at Colombo airport (CB 194 and 248).
In oral submissions, Counsel for the Applicant further submitted that if the Applicant had been cleared of all suspected charges, there would have been no necessity for him to have been released on bail. Counsel noted that the Tribunal accepted that the Court Documents failed to disclose what, in fact, “appropriate bail” meant.
Counsel for the Applicant submitted that the Tribunal failed to adequately deal with the Applicant’s claim because it failed to clarify what was meant by the phrase “appropriate bail” for the Applicant. Counsel argued there were matters that were required to be addressed; for example, the Applicant would continue to be exposed to criminal sanctions for not complying with bail.
Counsel noted that the Applicant had filed a supplementary affidavit on 11 October 2016, which attached to it a statement by Mr R, a Sri Lankan lawyer. Relevantly, Mr R stated:
He was arrested on the law under the Prevention of Terrorism act on 27th of Oct 2008. And 27th of Nov 2008 he produced in front of Magistrate Court of Wattala. I appealed in behalf of him [sic]. By that time he was released on two surety bail.
Even though what being released on bail mean under Sri Lankan law – it does not mean that he was found innocent but released pending a Court hearing or conclusion of an investigation.
The terms on which he was released such as being required to report to a police station at certain times and paying a surety to ensure his compliance. But on several calling days the suspect failed to be present to the Court.
The consequences of failing to comply with his bail requirements - will he be arrested or put on a watch at the Airport fined or prosecuted [sic].
Counsel for the Applicant said that the purpose of submitting Mr R’s statement was to demonstrate that inquiries could be made of someone with expertise in Sri Lankan law. Counsel said that these inquiries did not necessarily have to be made of the Sri Lankan lawyer who had represented the Applicant, but could be made through the Tribunal’s extensive country information research section. Counsel argued that making such inquiries to establish the legal position was not an undue burden on the Tribunal. He submitted that it was incumbent upon the Tribunal to do so, because much of the Applicant’s claim was based on the fact that he had come to the attention of the authorities, that he was arrested and held for a month and then released conditionally; not unconditionally. Counsel argued that the Tribunal seemed to believe that the release of the Applicant on bail was the end of the matter and that it was unlikely he would be brought back for further investigation or interrogation, despite what was recorded in the Court Document.
Counsel for the Applicant submitted that, in these circumstances, this was one of the rare cases where the Tribunal was obliged to make further inquiries about what is meant in Sri Lanka by the reference to an applicant being released on bail. Counsel submitted that because the Tribunal failed to take this critical step, the Tribunal proceeded to dismiss the claims of the Applicant regarding the authorities’ continuing interest in him.
The Minister submitted that the claim articulated before the Tribunal (and the delegate) was to the effect that, the “appropriate bail” that conditioned the Applicant’s release from detention in 2008, involved the Applicant reporting on a regular basis to the police station. The Minister relied on the following extract from the submission made by the RILC (at CB 105, extracted in full at [7] above):
We refer to the evidence provided by the applicant that he was required [to] report to the police station regularly. This is consistent and plausible given the above evidence that the police requested ‘appropriate bail’.
The Minister noted that, before the Tribunal, the Applicant, who was represented at all times, did not attempt to restate the claim or to suggest that the “appropriate bail” might include additional or different conditions to the requirement that the Applicant report regularly to the CID. Further, it was argued that there is nothing in the material identified by the Applicant that identifies a claim in different terms.
The Minister submitted that, as the Applicant’s claim was articulated as bail being conditional upon the Applicant reporting to the CID, it can be concluded that the Tribunal sufficiently understood and dealt with the claim when it recorded the following findings:
a)that neither the Applicant nor his co-accused were required to report to the CID after the Applicant’s release (CB 274 at [24] and 277 at [34]);
b)that the Applicant’s evidence as to where he was living after his release (which involved evidence that the Applicant went into hiding to avoid the CID), was so inconsistent as to not be credible (CB 275 at [31]);
c)that it was not satisfied that the Applicant went into hiding after his release from detention, or that he was of adverse interest to the CID (CB 277 at [34]); and
d)that in light of the Applicant’s lack of a pro-LTTE or anti-government profile, there was not a real chance that he would be subjected to serious harm at the airport upon return to Sri Lanka (CB 285 at [58]).
The Minister submitted that, given that the Tribunal did not accept that the Applicant was required to report to the CID, that the Tribunal found that the Applicant had not gone into hiding to avoid any such obligation and that he was not of adverse interest to the Sri Lankan authorities, then the Applicant’s entire argument, directed at breach of bail conditions and the consequences for the Applicant upon return to Sri Lanka, was rejected. The Minister submitted that there was no extant or residual claim that the Tribunal was obliged to consider. The Minister asserted that this was particularly the case in circumstances where the Applicant had the benefit of professional representation, as it was to be assumed that the claims that the Applicant sought to make were expressly raised by him and his advisers, and that no claims were to be “inferred”: SZRKY v Minister for Immigration and Citizenship [2013] FCA 352 at [14].
The Minister also submitted that, in circumstances where the Applicant had identified the “appropriate bail” conditions as being the requirement to report regularly to the CID, which conditions the Tribunal had rejected, the Tribunal was not required to make inquiries to ascertain what was meant by this requirement. The Minister argued that there was no “readily available” material or inquiry which was “centrally relevant” to the decision to be made by the Tribunal: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25].
Consideration
It is settled principle that the Tribunal’s review function requires it to consider all of the claims and integers of the claims put by the applicant: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at [55] to [57]. This obligation includes, not only claims expressly put by the applicant, but also claims that arise “squarely” on the material before the Tribunal (NABE at [58]).
In SZIAI, the majority of the High Court relevantly said, at [1]:
The functions, powers and duties of the Refugee Review Tribunal (“the Tribunal”) are set out in Pt 7 of the Migration Act 1958 (Cth) (“the Migration Act”). When the Tribunal receives a valid application for the review of an “RRT-reviewable decision” under the Migration Act, it must review that decision [referring to s.414 of the Act] … In the exercise of its review function, the Tribunal may obtain such information as it considers relevant [referring to s.424 of the Act]. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.
(footnotes omitted)
At [25] of SZIAI, the majority said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…
(footnotes omitted)
The Applicant claimed to fear persecution and significant harm for reasons including his actual and/or imputed political opinion in support of the LTTE as a result of his arrest and Court proceedings in 2008, his illegal departure from Sri Lanka, and as a failed asylum seeker in circumstances where he has a profile (arising out of his arrest, his bail and the authorities’ continued interest in him subsequent to his release) that would attract the adverse interest of the authorities, if he were to return to Sri Lanka. In support of these claims the Applicant made the following relevant integers of claim:
a)he and his co-accused were arrested in October 2008 by the CID on suspicion of being members of, or supporters of, the LTTE;
b)in November 2008, the Court found that he and his co-accused had no connection with the LTTE and they were released on the condition that they report to the CID every day, until further notice;
c)he reported to the CID every day for a short period of time, but then went into hiding; and
d)since this time the CID have continued to have an interest in him, as evidenced by their questioning of his father from 2009 to 2014.
In written submissions made by the RILC to the delegate, on behalf of the Applicant, it was submitted that it is apparent from the Court Document that the police found there was “no evidence to proceed” but, the request that the Applicant be released on “appropriate bail” indicated their intention to continue investigations (CB 105). In written submissions to the Tribunal, it was claimed that the failure of the Applicant to comply with the terms of his release will most likely mean that the Applicant will be on a watch list in Colombo airport if returned to Sri Lanka (CB 194).
I am satisfied that the Tribunal both identified and dealt with the Applicant’s general claims to fear persecution and significant harm, and his integer of claims made in support.
I agree with the Minister that the Applicant claimed that he was released on bail on condition that he report daily to the CID. Further, his claim was that the reference in the Court Document requesting the Applicant be released on “appropriate bail” is a reference to the Applicant being released on bail on a conditional basis. The only condition referred to, by either the Applicant in his statements or his representative (the RILC), was a reporting requirement; that he report daily to the CID until further notice. It is manifestly clear that the RILC linked this reporting condition to the request contained in the Court Document to the Applicant being released on “appropriate bail” (see [24] above). Moreover, the RILC’s submissions that the Applicant’s failure to comply with the terms of his bail (reporting daily to the CID) was given as a reason for the Applicant potentially being placed on a watch list on return to Sri Lanka and, thus, be at risk of significant harm (CB 248).
The Tribunal’s reasoning at [34] of its decision record (see [14] above for full extract of this paragraph) discloses that the Tribunal understood, even though it noted that the Court Document did not state what it meant by “appropriate bail”, that the reference to “appropriate bail” was a reference to the bail condition that the Applicant report daily to the CID. This is evident from the Tribunal’s reasoning contained in paragraph [34] of its decision record, that:
… Although the document refers to them being released on “appropriate bail” it does not state what this was. For the reasons set out above, the Tribunal is not satisfied that the applicant was required to report to the CID.
The Tribunal rejected the Applicant’s claim that he was required to report to the CID for reasons which arose primarily from the inconsistency of the Applicant’s evidence in relation to this reporting requirement. The Tribunal also, because of the implausibility of the Applicant’s evidence, rejected his claim that he went into hiding. These rejections of the Applicant’s claims were open to the Tribunal. Subsequently, these rejections formed the basis for the Tribunal’s finding that he was of no further adverse interest to the Sri Lankan authorities after his release and its rejection of his claim that his father was interrogated and beaten when questioned by the authorities about the Applicant in 2009, 2013 and 2014. As the Minister has pointed out, in circumstances where the Tribunal made these findings, it was an inevitable conclusion of the Tribunal that the Applicant did not, as he had claimed, have a profile which would attract the adverse interest of the Sri Lankan authorities if he was returned to Sri Lanka, thereby placing him at risk of significant harm.
I am satisfied that these findings dealt with the Applicant’s particular claim that the investigations by the CID were continuing after his release.
The Applicant’s submissions that the Tribunal had no basis to find that the Applicant was cleared of any links with the LTTE, is to be rejected. In my opinion, this finding was open to it on the following bases:
a)in the Court Document, the police officer stated that investigations carried out so far had not revealed any information linking the suspects to terrorists activities or other crimes (CB 5); and
b)significantly, the Applicant said in his statutory declaration, that in November 2008, “the Court found that we had no connection with [the] LTTE and they released us” (CB 65).
For the reasons set out above, I am satisfied that the Tribunal dealt with the Applicant’s claims and integers of claims.
As I have found that the Applicant’s claim was that, the reference in the Court Document requesting the Applicant be released on “appropriate bail” is a reference to the Applicant being released on bail on condition that he report daily to the CID, it cannot be said that there was the existence of a critical fact not before the Tribunal, in the sense described in SZIAI. In any event, it is not apparent what was the obvious inquiry that the Tribunal could make about the terms on which the Applicant was released. Counsel for the Applicant referred to the Tribunal’s access to resources on information regarding the legal system in Sri Lanka. Whatever the information resources available to the Tribunal, this does not assist in ascertaining what the meaning of “appropriate bail” was in the Applicant’s case, if it was not, as the Applicant claimed, reporting daily to the CID. I am not satisfied that the meaning of “appropriate bail”, which of course was a phrase utilised by the police officer who was reporting to the Magistrate, could have been easily ascertained. The relevant fact for the Tribunal’s engagement on its review function, was the terms on which the Court released the Applicant on bail; not necessarily the recommendation of the police officer.
For these reasons, I reject the Applicant’s claims that the Tribunal engaged in judicial review when it failed to take steps to ascertain the meaning of the phrase “appropriate bail.”
Accordingly, I find jurisdictional error does not arise from ground one.
Ground 2
The Applicant’s second ground of review is as follows:
The Tribunal misconstrued the Applicant’s evidence.
Particulars
a) The Tribunal misconstrued the evidence provided by the Applicant in relation to his father’s complaint to the Sri Lankan Human Rights Commission (“SLHRC”) by finding that he had no reason to make a complaint in July 2013 concerning the Applicant whereas the complaint itself states that he was beaten and questioned by the CID in relation to the Applicant and this prompted his complaint.
b) In misconstruing the Applicant’s evidence, the Tribunal failed to properly evaluate the prospective risk of serious or significant harm to the Applicant in the context of his release on bail and claim that the authorities still had a continuing interest in him.
The Applicant’s submission in relation to ground two is that, “the point of the letter being produced in support of the Applicant’s claims was that the authorities were still continuing to look for him five years after his arrest and failure to comply with bail.”[1] In the Applicant’s written submissions, he argues that the Tribunal’s failure to appreciate that being released on bail was not the same thing as a finding of no guilt, led it to presume that the Applicant was not of continuing interest to the authorities and that this presumption resulted in the Tribunal misconstruing the evidence presented concerning the continuing interest; such as, the Applicant’s father’s complaint.
[1] Applicant’s Contentions of Fact and Law at [8].
Counsel for the Applicant submitted that the Tribunal was prepared to accept that the Applicant’s father had made a complaint to the HRCSL. Counsel submitted, however that the Tribunal’s reasoning that the Sri Lankan authorities were not aware of the complaint and, therefore, there was not a real chance of the Applicant being harmed as a result of this complaint, misconstrued the purpose and consequently misstated the evidence of the Applicant, giving rise to jurisdictional error.
The Applicant’s submission that the Tribunal misconstrued the evidence or the purpose of the evidence, constituted by the Applicant’s father’s complaint to the HRCSL, is rejected. It is clear from the submissions made by the RILC to the delegate, on the Applicant’s behalf, regarding the Applicant’s father’s complaint to the HRCSL, that the evidence of the complaint was relied on to support an argument that the making of this complaint will place the Applicant at further risk of harm when it comes to the notice of the authorities (CB 111). It is clear from the written submissions that this complaint is seen as probative evidence in support of the Applicant’s claim to fear persecution and s`ignificant harm as a member of a particular social group, “victims of human rights violations in Sri Lanka seeking justice”. The written submission specifically states, when identifying this as a reason to fear persecution or significant harm, “‘Victims of human rights violations in Sri Lanka seeking justice’ due to his father’s letter to the human rights commission” (CB 103). Later in the written submission, in discussing this reason to fear persecution or significant harm, it is stated (CB 111):
… We refer to the evidence provided by the applicant that his father made complaints at the Human Rights Commission in Sri Lanka regarding the recent visits by what the applicant believed to be the CID. In our submission, this will place the applicant at further risk of harm, as “a victim of human rights seeking justice”.
The basis upon which the Applicant relied on the evidence comprising his father’s complaint, was likewise repeated by the RILC in a subsequent submission to the Tribunal, dated 2 January 2015. In this submission, the Applicant again claimed, inter alia, that he feared persecution upon return to Sri Lanka because of “his membership of the particular social group ‘victims of human rights violations in Sri Lanka seeking justice’ due to his father’s letter to the human rights commission” (CB 187).
I am satisfied that the Tribunal correctly understood the basis upon which the Applicant relied on his father’s complaint to the HRCSL as probative evidence. This basis was that the complaint, if it came to the notice of the Sri Lankan authorities, would place the Applicant at further risk of harm for the reason of his membership of a particular social group, “victims of human rights violations in Sri Lanka seeking justice”. The veracity of this claim clearly depends upon the likelihood that the complaint would come to the attention or knowledge of the Sri Lankan authorities. The clear evidence was that it had not. Consequently, the Tribunal’s reasoning and conclusions in relation to this complaint were correctly made and disclose no jurisdictional error. Nowhere in the Applicant’s claims and/or submissions does he argues that his father’s complaint to the HRCSL is probative evidence supporting his claim that after his release, he was of continuing interest to the Sri Lankan authorities.
For these reasons, I find that no jurisdictional error arises on the basis of ground two.
Conclusion
For the reasons set out in this judgment, Orders will be made dismissing the Applicant’s application for judicial review and requiring the Applicant to pay the First Respondent’s costs in a fixed amount.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 2 February 2017
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