BDS17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1039
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1039
File number(s): SYG 817 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 16 November 2023 Catchwords: MIGRATION - JUDICIAL REVIEW – Protection visa – Whether Administrative Appeals Tribunal failed to consider or consider the extent of corroborating evidence – Whether strong credibility findings were open on the evidence or unreasonable Legislation: Migration Act 1958 (Cth) Cases cited: BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683
BUW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 238
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 282; [2018] FCAFC 94
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 1 November 2023 Place: Parramatta Counsel for the Applicant: Mr Silva Counsel for the First Respondent: Mr Reilly Solicitor for the First Respondent: Mills Oakley Lawyers Appearing for the Second Respondent: Submitting, save as to costs
Table of Corrections 17 November 2023 In paragraph 24 use of the name “Sagara” has been corrected to “Nanthan”, and “uncles’” has been corrected to “uncle’s”. In paragraph 28 “they” is corrected to “the” before “photos”. In paragraph 30 “Nantha” is corrected to “Nanthan”. In paragraph 32 “Court proceedings” has been corrected to “court proceedings” In paragraph 32(a) the phrase “district and magistrate courts” has been corrected to “District and Magistrate Courts” and the city name has been anonymised. In paragraph 32(b) the phrase “district and magistrate court” has been corrected to “District and Magistrate Court”, and a “;” has been corrected from “.” after the phrase “whereabouts of the suspect”. In paragraph 32(c) the name of the bank has been anonymised to “[City] National Bank”. In paragraph 32(d) the name of an individual has been anonymised to “named person”. In paragraph 32(e) the word “court” has been corrected to “Court”. In paragraph 42 “party to Sri Lanka” has been corrected to “party in Sri Lanka”, and “police, The applicant faced” is corrected to “police. The applicant faced”. In paragraph 47(g) “and” has been inserted at the end of the paragraph. In paragraph 48 “jail” has been corrected to “gaol”. In paragraph 52(h) “Nunded” has been corrected to “Nunden”. In paragraph 52(j) “and’ has been inserted at the end of the paragraph. In paragraph 56 in the first sentence the first use of “to” has been removed. In paragraph 58(c) “court” has been corrected to “Court”. In paragraph 61 “was satisfied” has been inserted before “that he did not meet the criteria”. In paragraph 66 “Sangara” has been corrected to “Sagara”. In paragraph 71 “a” has been inserted before “protection visa”. In paragraph 72 “court” has been corrected to “Court”. In paragraph 73 the “,” after “court documents” has been deleted. In paragraph 78 “by” has been corrected to “with” after “was squarely raised”. In paragraph 82, “to this Court” has been inserted after “made by the applicant”. In paragraph 97 in reference to paragraph 93 the “.” after “Nor does” has been removed. In paragraph 100 “to the Tribunal” has been inserted after “written submissions”. In paragraph 101 “no open” has been corrected to “not open”. ORDERS
SYG 817 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDS17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Further Amended Application filed 8 September 2023 is dismissed.
3.The Applicant pay the First Respondent’s costs as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment for the Further Amended Application filed 8 September 2023 seeking judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 21 February 2017.
The Tribunal’s decision affirmed the decision of a delegate (“delegate”) of the then Minister for Immigration and Border Protection (“Department”) refusing the applicant a protection visa.
BACKGROUND
The applicant is a citizen of Sri Lanka and arrived in Australia on 9 April 2013 as an unauthorised maritime arrival.
At his irregular Maritime Arrival Entry Interview, the applicant provided information in respect of his background, and the reasons why he left Sri Lanka.[1]
[1] The details he provided in his application (at CB:6-7) in respect of his mother and father are different to those recorded on his birth certificate (at CB:94), not only in respect of his father’s stated date of birth, but also in respect of both his mother’s name and date of birth.
On 2 August 2013, the applicant applied for a protection visa.
The basis of the applicant’s claim was that he feared harm resulting from his conflict with two individuals. The first was an individual referred to as Sagara, with whom the applicant had an altercation during the 2010 election campaign. The second was an individual referred to as Nanthan, who the applicant claims assaulted and threatened him after he attempted to help the police track Nanthan down.[2]
[2] CB:250[14].
In his written claim for protection, the applicant claimed to fear returning to Sri Lanka due to his imputed political opinion and his membership of a particular social group – campaign supports in Sri Lanka. He also feared that he would suffer from significant harm due to a lack of police protection from a criminal gang who abducted and assaulted him.[3]
[3] CB:76.
On 23 January 2015, the delegate refused to grant the applicant a protection visa.
The delegate was not satisfied that the applicant has a well-founded fear of persecution, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of returning to Sri Lanka that he would be subject to significant harm.[4]
[4] CB:144 and 146.
On 28 January 2015, the applicant lodged the application for review with the Tribunal.
On 1 September 2016, the applicant was invited to attend a hearing with the Tribunal on 1 November 2016. The hearing took over 3 hours. The applicant gave evidence through an interpreter and had his representative present. The applicant’s agent made written submissions to the Tribunal on 28 October 2016 and again following the hearing on 8 November 2016.
On 21 February 2017, the Tribunal affirmed the decision of the delegate.
On 17 March 2017, the applicant applied to the then Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. He was not successful. The applicant then appealed to the Federal Court, where he was successful in having the proceedings remitted back for re-hearing.[5]
[5] BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683.
Before the Delegate
A summary of the applicant’s accounts before the delegate in relation to Sagara and Nanthan are as follows.[6]
The applicant’s story about Sagara
[6] The grammatical errors are found in the original accounts.
Entry Interview
In his entry interview, the applicant explained why his life was threatened by Sagara. He said that in 2010 he had been putting up election posters for his party and that opposition members came to assault him. He and his friend fled on a motorbike. Sagara chased them on a motorbike, and was following them closely with a knife, which he raised at the applicant to assault him. The applicant then managed to push him away and Sagara fell down and was injured. A few days later, Sagara came to the applicant’s father’s shop (where the applicant worked) and threatened the applicant to his father. Sagara was then gaoled, and the applicant saw him about 2 or 3 years later “last December”. Given that the entry interview was conducted on 4 May 2013, this likely places the second incident with Sagara in December 2012. The applicant says that he saw him and went to apologise, but that Sagara held his shirt and slapped him. The applicant then fell to the ground where Sagara threatened to kill him. He managed to escape by throwing sand in his face and running away. The applicant did not go home that night. However, Sagara went to his house, and broke some glass and the applicant’s motorbike.
The applicant named the party he had joined in 2010 (“named political party”), and that he helped them by putting up posters.
Statutory Declaration Dated 1 August 2013
The applicant declared that, in 2010, he was putting up posters for his party when the opposition supporters came to assault them. He and his friend fled on a motorbike. A person called Sagara, who was involved in criminal activities, chased them. He had a knife in his hand, and raised his hand to assault the applicant, who pushed him away. Sagara fell down and was injured. A few days later, Sagara came to the applicant’s shop and told his father that one day he would kill the applicant.
Sagara was then in gaoled for around 2 years. The applicant did not see him until 1 January 2013.[7] The applicant had been in hiding for another incident, and only ventured near his hometown as it was New Year’s Eve. He stayed with his parents for a few hours. The next morning on his way back to where he was hiding, he ran into Sagara and went up to him to apologise, as he was afraid of the threat. However, Sagara assaulted him and threatened him again. The applicant managed to get away, and his father then told him that he came with others to his house that night, that they broke some glass and also set fire to the applicant’s motorbike. Sagara again made threats to kill the applicant.
[7] The actual date is referred to as being “this year”. The statutory declaration is dated 2013, therefore the year is taken to be a reference to 2013.
The applicant said that the persecution he suffered has been perpetrated by agents of the government, and that the government is either unwilling or unable to prevent the persecution. Electoral violence is common in Sri Lanka and he fears that he would be targeted by Sagara again because of what happened in Sri Lanka, when he was being chased by him, because of the applicant’s work for the opposing political party. The applicant said that he feared the police would not protect him as Sagara is a supporter of the ruling party.
Documents in Support of visa application
A letter dated 24 November 2012,[8] addressed “To whom it may be concerned”, translated in May 2013 in Sri Lanka, reads that the applicant is well known to the author, who is a member of Parliament, and that he has “devoted himself” for that particular political party. This is dated prior to the applicant’s departure from Sri Lanka, and prior to the second meeting with Sagara.
Protection Visa Interview[9]
[8] CB:99.
[9] From the delegate’s decision; CB:138. The actual recordings did not form part of the material in the Court Book, although it is noted that the Tribunal member was satisfied, having listened to the recording of the Protection Visa interview (“PV interview”), that the summary in the delegate’s decision was a correct record of the interview.
The delegate summarised the evidence provided to her during the interview on 16 December 2014 (“PV interview”). She noted that the applicant was asked multiple questions about his claims and personal circumstances.
The applicant said that the incident with Sagara occurred in 2010 when he was affixing posters for his party, and that people belonging to the opposing party began chasing him. He and his friend fled on a motorbike. Sagara caught up with them, holding a sword and the applicant managed to push him off his motorbike, and he fell. After this incident the applicant did not see Sagara again until 1 January 2013, as he was gaoled for murdering someone. The applicant approached Sagara on the street when he came back to a New Years’ Eve party in his town (after spending 2-3 months in another town hiding) wanting to ask for pardon. However, Sagara assaulted him and the applicant ran away. Later that night Sagara came to the applicant’s home and broke their windows and burnt his bike.
The delegate then concludes as follows:[10]
The applicant was inconsistent with the statements he provided in his entry interview and his PV application saying that Sagara came to his home after he apologised to him in the street (two or three years after the incident – in January 2013) when he broke some windows and set his bike on fire, whereas in his PV interview he was adamant that this happened in 2010 a few days after the incident.
The applicant’s story about Nandan/Nanthan/Nunden[11]
[10] CB:138. This conclusion is confusing and does not seem to reflect what the applicant said at the PV interview as noted by the delegate earlier in her record of decision.
[11] Variations of the spelling for Nanthan were used at different times.
Entry Interview
In his entry interview, the applicant explained why his life was threatened by Nanthan. He gave a long and detailed story about how Nanthan, who was a customer at the applicant’s uncle’s jewellery shop, wanted to buy some jewellery but then, in order to pay, asked for the applicant’s bank account so that he could deposit the money in instalments. When the payments were made Nanthan completed the purchase.
The applicant was then summonsed to go to the local police station and, when he did so, he was told that there was an allegation that he took money from people in order to send them to a foreign country. The police threatened to detain the applicant, but he was able to convince them not to do so and was asked to come back on a later specified date. When he did, he was able to produce documents in relation to the purchase of jewellery by Nanthan, but he was detained that night and produced in court. He managed to get bail and was released. The court informed him that he had to produce Nanthan in court and that if he did not he would not be released. His uncle then stopped him from continuing to work in his shop. The applicant went with the police to look for Nanthan, but was not able to find him.
A few days later the applicant attended a funeral and saw Nanthan. He took some photos of him on his mobile phone. He went to the nearest police station and brought the police to the place where he had seen Nanthan but he had gone. He then called the local police station (a day later) and spoke to an officer who he told that he had seen Nanthan and that he had 3 photographs, but that the police officer told him he did not have the application on his phone to view the photo.
Somehow Nanthan came to know about the photographs, which the applicant saved not only on his phone but also on his memory card, which was in his bag, and also on his computer. One day when he was coming home from work, he was accosted. He was hit on the head, and fainted. He was taken in a van to a house, where his hands and legs were tied. The people who had him checked his phone and took the memory card from his bag. He was kicked and asked if there were any more photographs. He was then beaten, and burnt on both of his legs twice with an iron rod. He was asked if he had any more photos, and when the iron rod was brought close to his face to burn it, he admitted to having photos on his computer at home. He then called his home while he had a gun pointed to his head and asked his mother to tell his brother to get the hard drive and give it to a friend of his who was going to come to the house. Nanthan then called someone who picked up the hard drive. They had drinks and one of them sexually abused the applicant. The group then left after Nanthan got a phone call, and Nanthan said to leave the applicant, once again after having a gun pointed at his head. The applicant was left tied up in the house, but he managed to open the knot with his mouth, and he lost a tooth in the process. He managed to escape through the chimney. This occurred in December (presumably 2012).
When he was asked why Nanthan was still threating his life, the applicant said that he had divided the hard drive into two, and that Nanthan was given the wrong one, and when he checked the hard drive, the photographs were not there, the photos were on the other hard drive. The applicant was then told by his family that he was in danger as they were constantly looking for him, and he went to live in Chillaw for 2 months.
The applicant said that he was arrested in October 2011, that it was alleged that he was involved in people smuggling, and that the case was still pending. The applicant said that Nanthan was worried that he may have implicated him, hence the threat on him, as the applicant is the co-accused and Nanthan is the primary accused.
Statutory Declaration Dated 1 August 2013
The applicant relayed the story about working for his uncle’s shop when Nanthan used the applicant’s “bank account in an illegal way”. The applicant relayed how he was summonsed to the local police station and was told about the allegation. He was able to convince the police not to detain him but that he would return with documents proving the purchase of the jewellery. On the day he was due to return, he gave the police the documents. He was detained that night and the following day went to court. The applicant explained what occurred in court and that the complainants confirmed that it had not been him. He was then told by the court to produce Nanthan otherwise he would not be released. He managed to locate Nanthan by accident at a funeral, where he took pictures of him on his phone. The applicant then informed the police, but when he went to look for Nanthan with two police officers, Nanthan was no longer there. He then called the local police station and advised them he had seen Nanthan. Somehow, Nanthan became aware of the photographs, which the applicant had saved on his phone, memory card, and also on the computer. One day when the applicant was walking home, he was assaulted and abducted by Nanthan’s associates, he was taken to a house and assaulted. His phone and memory card were taken off him. He was asked if there were more photographs. The applicant was then burnt to his right leg in two places with a metal rod, and threatened that his face would be burnt. He then admitted he still had photos on his computer at home. The assailants held a gun to his head, and they let him call his house. Nanthan then arranged for someone to collect the hard drive from the applicant’s house. The assailants had drinks and one of them sexually assaulted the applicant. After Nanthan received a phone call, the men wanted to leave and Nanthan told them to leave the applicant. The applicant managed to open the knots he was tied with using his mouth, breaking a part of his tooth, and he escaped while they were away from the house. After he escaped, the applicant went to the police station but they would not take his complaint. He went again to his local police station and they said they could not help him. The applicant said that he went into hiding as he could not get help from the police, and he went to stay with a friend. His family told him that the people had been round looking for him.
The applicant said that he was fearful from the authorities, from Nanthan and his associates. The judge had told him that Nanthan was involved in a lot of illegal activities. The applicant is still involved in the court case. He believed that Nanthan had connections with the police because how else would he have found out about the photos.
Documents in Support of visa application
The applicant relied, in his application for protection, on a number of documents relating to his arrest and subsequent Court proceedings, translated into English, which he refers to as “court documents” in his submissions to this Court. These comprised of:
(a)“Sri Lanka Police Submission of Information to Magistrate” dated 18 August 2011:[12]
[12] CB:100-103.
(i)Bears court seal of District and Magistrate Courts of a particular city, 11 December 2012 (on original, although translated copy indicates this is illegible);
(ii)Refers to an earlier report of 7 July 2011;
(iii)Informs the court the police are investigating the embezzlement of moneys, that they have identified the applicant’s account as the one where money was paid into, and the applicant is now to be arrested. However, the suspect Nandan’s address is still unknown; and
(iv)Adjournment sought.
(b)“Sri Lanka Police Submission of Information to Magistrate” dated 21 May 2012:[13]
[13] CB:104-107.
(i)Bears court seal of District and Magistrates Court of a particular city, 11 December 2012;
(ii)Refers to earlier reports;
(iii)Informs the Court the police have completed all investigations and that no information could be obtained in respect of the address or whereabouts of the suspect;
(iv)Police are of the view that “attempts would be made to obtain information about the primary suspect from the secondary suspect who is currently in custody”; and
(v)Handwritten on bottom “Court saying that if can locate Nanthan then [the applicant] can be… (illegible). It is unclear from the handwritten notation whether this was someone’s opinion as to what the document is said to be saying, or if it is an additional notation as to what else the court said on the day the matter was before it.
(c)Document bearing header “[City] National Bank”[14] which is said to be produced to the court pursuant to its order dated 7 July 2011, in respect of the account number identified in the police investigation.
[14] CB:108, 110-111.
(d)Untitled document with seal of District and Magistrates Court dated 11 December 2012,[15] but bearing date 30 August 2012, where a named person is advising “that the second suspect (the applicant herein) had made with an accident and is warrant in the hospital”.
[15] CB:109.
(e)“Sri Lanka Police Submission of Information to Magistrate”:[16]
[16] CB:112-115.
(i)This document does not appear to be dated and appears to be incomplete;
(ii)It is a report from the police to the Court in respect of its investigation following a complaint about N.Nandan asking for and accepting money on the premise that he would be able to obtain the plaintiffs work in the Netherlands. Moneys were deposited into an identified bank account and further time was required for ongoing enquiries; and
(iii)Handwritten notation on the original “Statement given by [the applicant] to Police Re Nanthan”. It is unclear from the handwritten notation whether this was an opinion as to what the document is said to be saying. The translated document itself appears to be a statement from the police about a complaint made to it by a person identified as the “plaintiff” who paid money to Nanthan, and not a statement from the applicant to the police.
(f)Untitled document identified in Court Book as “Statement by applicant’s lawyer, with translation”:[17]
(i)The document names N.Nanthan as suspect 1, and the applicant as suspect 2;
(ii)There is a notation that the second suspect has met with an accident and is warrant in the hospital;
(iii)The document notes: “Suspect present”;
(iv)This document appears to include a summary of the submissions made by a lawyer in respect of the suspect’s involvement in the financial transactions with “Nanthan”. The lawyer requested that the suspect who is 21 years old be released on bail;
(v)The document then contains a summary of what the police submitted to the Court, including the following “We have no objection to releasing Nandan on bail until we obtain sufficient evidence”; and
(vi)The document contains a summary of the orders made by the Court, including that “the suspect was released on personal bail of Rs.100,000.00. He has to report to the police station on the last Sunday of each month.”
[17] CB: 116-122.
Protection Visa Interview
The applicant relayed his story about Nanthan and how the applicant came to be implicated in Nanthan’s people smuggling activities. The applicant said that he pleaded with the police and was subsequently let go on bail, and that he provided the documents he had to the police. The applicant also said that the Court ordered him to identify Nanthan in order to be dismissed from the case. He added that the Court was aware of Nanthan’s similar activities carried on at other places. The applicant stated that he went back to work at the jewellery shop and that he was required to attend court every three months.
The Delegate’s Decision
The delegate accepted that the applicant had minor involvement with the named political party, including putting up posters, and that he experienced some difficulties during the pre-election campaign including being chased by a person called Sagara.
The delegate did not accept that the applicant was threatened by Sagara in 2013 after he apologised for the incident in 2010.
The delegate was not satisfied that the essential and significant reason for the harm feared by the applicant stems from his political party association. Rather, the delegate was satisfied that the harm feared by the applicant is private harm from Sagara in revenge for a personal injury sustained. The delegate did not accept that the applicant would not be afforded protection from the authorities as Sagara is known to them as a convicted criminal. The delegate was not satisfied that the applicant would be harmed due to his association with the particular named political party. The delegate was not satisfied that the applicant had a well-founded fear of being persecuted for reason of his political opinion, imputed or otherwise.
The delegate accepted that the applicant was implicated in the case of defrauding people of their money for organising their trip and securing their jobs in the Netherlands, until he proved that the money deposited to his bank account was the money owed by Nanthan for purchasing the jewellery from the shop the applicant worked at.
The delegate did not accept that the applicant was ordered by the Court to identify and locate Nanthan, who has been known to the authorities as someone who has been involved in similar criminal activities.
The delegate did not accept that the applicant had been abducted, tortured or threatened by Nanthan for having his photo taken and providing the photos to the police.
The delegate found that even if the court case had not been closed and the applicant remains one of the suspects, the applicant had in the delegate’s view provided sufficient evidence to the authorities that it was not his wrong-doing and that he was in fact an innocent victim of Nanthan’s ploy, and therefore the delegate was satisfied that the applicant would be acquitted of any guilt by the judiciary. The delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, that there is a real risk that the applicant would be subject to significant harm, that is Australia did not owe the applicant protection obligations under the complementary protection provisions.
Before the Tribunal
A summary of the applicant’s accounts before the Tribunal in relation to Sagara and Nanthan are as follows.[18]
The applicant’s story about Sagara
[18] The grammatical errors are found in the original accounts.
Documents and Submissions to Tribunal
In the written submissions made on behalf of the applicant dated 26 August 2016, it was submitted that the applicant was active in the named political party, and that “After facing threats due to his political affiliations and activities” the applicant decided to escape from Sri Lanka. Before he left the country, the applicant had tried to hide but the threat remained. The applicant escaped from Sri Lanka to protect himself from threats from various people associated with “this” particular political party in Sri Lanka. He did not find protection even from the Sri Lankan police. The applicant faced long term threat to his life from opposition political party “members”.[19]
[19] CB:195.
It was submitted on the applicant’s behalf that he experienced a threat to his life due to his political allegiance to a certain party in Sri Lanka.
It was further submitted on behalf of the applicant that he gave “cogent” evidence of the persecution he suffered over a “considerable time” before he left Sri Lanka and that there was no reason to believe that things had changed.
It was submitted that the applicant was attacked for his political affiliations and activities in Sri Lanka, after which he went into hiding.
The applicant also submitted his Statutory Declaration dated 1 August 2013.
Oral Evidence at Tribunal Hearing
The applicant’s evidence is that:
(a)He worked on the election campaign in the 2010 presidential elections. His involvement included attending meetings and pasting posters. He was involved with that party for about 2-3 years, but his main involvement was in 2010;[20]
(b)He was pasting posters over the top of their posters, and then Sagara and his people attacked the applicant and his friends. The applicant and a friend fled on a motorbike, and Sagara followed them. Sagara had a sword, and the applicant was able to push him;
(c)He was not sure what month this happened in;
(d)After the applicant pushed Sagara, he fell down. Subsequently the election took place, and the government won. The day after the winner of the election was announced, Sagara came to the applicant’s house, set fire to his bike and broke windows and threatened him;[21]
(e)The reason why Sagara threatened him was because he pushed him down, and also because it was election related violence;
(f)He did not report his bike being burnt by Sagara, but he stopped working at his father’s shop after that;
(g)He met Sagara two years later, at the same place he was placing posters.[22] At the time he had been in hiding, but he went to a party and then to see his parents. The next morning on the way back to the place where he had been hiding he met Sagara, it was 1 January 2012.[23] He wanted to apologise to Sagara, but Sagara assaulted him, tried to choke him but he got away. Sagara then went to the applicant’s father’s shop, and threatened his father by saying he had the applicant’s life in his hands;[24] and
(h)He had applied for a visitor visa in 2012, or at least had paid an agent and was waiting on the outcome of his visa application before he came to Australia by boat.
[20] Affidavit of Applicant filed 21 August 2017, Annexure A, T:12-15.
[21] T:22.line 12-23; During the hearing, the member put to the applicant that Sagara came to his shop, but the applicant replied it was to “my house”.
[22] T:26.line 44.
[23] T:27.line 15-20.
[24] T:27.line 22-30.
Post Hearing Submissions to Tribunal
In the written submission dated 8 November 2016, following the Tribunal hearing, it was submitted on behalf of the applicant that even though Sagara belonged to a particular party, they were now in joint government and Sagara had threatened the applicant’s father saying that his son’s life was in his hands. It was submitted that Sagara is operating an illegal alcohol manufacturing business, that he bribes the police, irrespective of which political party is in power. The animosity between the applicant and Sagara started during an election campaign, Sagara is still against the applicant and threatened to take his life, and the applicant is in fear of Sagara should he return to Sri Lanka. It was submitted that Sagara killed someone but was in gaol for only two years, and that “if you have money and influence, one can get away with very little punishment”.
The applicant’s story about Nandan/Nanthan/Nunden
Documents and Submissions to Tribunal
The written submissions made on behalf of the applicant dated 26 August 2016, do not appear to address the claim about Nanthan at all.
The applicant also submitted his Statutory Declaration dated 1 August 2013.
At the hearing, the applicant relied on a Medical Certificate, dated 3 December 2012,[25] which referred to “Accident trauma to head and right
leftleg.”[25] CB:214.
Oral Evidence at Tribunal Hearing
The applicant’s evidence is that:
(a)He was arrested in 2011 and that there was a court case;[26]
[26] T:15.20-26.
(b)He went to a hospital to obtain treatment and straight after he returned to the town he had been hiding in;[27]
(c)The reason why Nunden did all that he did was in order for them to obtain the computer;[28]
(d)He was issued with a summons to attend a police station, and when he did so he was told that he would be arrested. He did spend overnight in a cell, he did go to court, he had a lawyer appear for him and he was granted bail. He paid 200,000 bail and had two people act as guarantors;[29]
(e)He did not actually pay any money for bail, but that his uncle organised two guarantors. This occurred two days after he was summonsed in 2011;[30]
(f)He appeared in court, in 2011, but he cannot remember the date. The result of going to court was that he had to report to the police once a month, being the last Sunday of the month;[31]
(g)The last time he reported was in October 2012, and he did not report after that as he did not want to go to his home town as he was hiding in another town;[32]
(h)The funeral where he spotted Nunden was in December 2012, in his village;[33]
(i)He believes he will be arrested if he is to return to Sri Lanka because there is an outstanding matter in court, the case with Nunden;[34]
(j)After he departed Sri Lanka, the police came to his home in 2014 looking for him as he did not appear in court in 2014;[35]
(k)The reason why Nunden was after him is that the applicant had his photo, and if he was to show the photo then Nunden would be arrested.[36]
[27] T:23 and T:41 line30.
[28] T:24 line 6.
[29] T:33 line 17.
[30] T:33 line 21.
[31] T:34 line 8-10.
[32] T:36 line 15.
[33] T:37 line 5-10.
[34] T:24 line 30-34.
[35] T:36 line 20-26.
[36] T:39 line 45.
In this regard, the Court notes that the applicant’s evidence had consistently been that he suffered injury to either both his legs or his left leg, as a result of the assault, namely the burns with the metal rod, he was subjected to at the hands of Nanthan and/or his gang.
Post Hearing Submissions to Tribunal
It was submitted on behalf of the applicant in the post hearing written submissions dated 8 November 2016, that the police did not initially know Nanthan, but that the applicant knew him due to the jewellery sale. It was submitted that the police were trying to avoid taking action due to bribes they were receiving from Nanthan, and that the applicant believed that after he told the police about the photos, Nanthan and his friends kidnapped him and attacked him. It was likely that the police told Nanthan about the photographs because no-one except for the police knew that he had the photographs.
It was submitted that when Nanthan and his associates attacked him on his way home in January 2013, they hit him on his head with an iron rod, and they put an iron rod on his leg, which left marks on his lower leg: “The doctor’s note states that there was head injury and injury to on his leg”. The Court notes that the medical certificate, which is referred to at [51] above is dated 3 December 2012, prior to the date on which the applicant submitted to the Tribunal that he was attacked.
THE TRIBUNAL’S DECISION
The Tribunal identified a number of concerns regarding the applicant’s account in relation to Sagara including, inter alia, the following:[37]
(a)That the applicant claimed he was actively involved in putting up posters for the campaign in 2010, which he described as bearing a named party member’s photograph, the member’s name, and the named political party’s symbol which he identified as an elephant. However, the Tribunal, by reference to country information before it, identified the named party member as contesting the elections on the New Democratic Front ticket under the swan symbol where he was endorsed by several political parties including named political party, and he had declared himself a ‘non-party candidate’. Further to this, the Tribunal identified that the named party member only joined the named political party in 2016. The Tribunal found it implausible that the applicant who, on his account, was so actively involved in putting up posters would not know this information. Furthermore, the Tribunal stated that it was not persuaded by the applicant’s attempt to explain this by his comment that the posters were not all the same and that some had the leader of the named political party and some had other leaders.
(b)That the Tribunal was concerned by the applicant’s inability to remember when the first incident with Sagara occurred, or the month of the 2010 election. The Tribunal was not persuaded by the post-hearing submissions that the applicant could not recollect the dates on account of nerves and his attempts to move on with his life.
(c)The Tribunal also pointed to the applicant’s inconsistent accounts following his initial confrontation with Sagara. The Tribunal noted that the applicant told the Tribunal that the day after the election results were announced, Sagara came to his house, set fire to his bike, broke windows and threatened to kill the applicant. However, in his written evidence, the applicant described these events occurring after his second encounter with Sagara in 2013.[38]
(d)The Tribunal was ‘dubious’ that Sagara would have engaged with a prolonged pursuit of the applicant or election relation violence given the applicant’s evidence that Sagara supported the government mainly to protect his illicit alcohol production business.
(e)Finally, the Tribunal did not find it plausible that, knowing Sagara’s criminal activities and imprisonment for murder, that the applicant would draw attention to himself in a chance encounter to apologise. The Tribunal was not persuaded by the applicant’s claim he did so thinking that, as it was New Year’s Day, Sagara might be gracious and not hold anger against the applicant.
[37] CB:250-2.
[38] CB:251[22].
The Tribunal concluded that:[39]
24.[T]he applicant was never involved with the [named political party], nor campaigned for the [named party member] in the 2010 elections. It follows that the Tribunal does not accept that the applicant ever had a physical altercation with Sagara during the campaign or apologised for it two years later, nor that Sagara threatened to kill him, broke windows in his house or burned his bike, either in 2010 or 2013. The Tribunal is not satisfied that, if he returns to Sri Lanka, the applicant will suffer persecution due to his imputed political opinion and membership of the particular social group of campaign supporters over his encounter with Sagara or for any other Convention reason. In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia. This casts serious doubt over the credibility of his claims in general.
[39] CB:252[24].
The Tribunal also had concerns regarding the applicant’s account relating to Nanthan as being “vague, convoluted and confusing”, including, inter alia:[40]
(a)That the applicant described key events such as being summoned to his hometown police station and the court as occurring sometime in 2011. The Tribunal was not persuaded by the explanation offered in the post-hearing submissions as to why the applicant was vague, namely, that the applicant was nervous and attempting to move on with his life.
(b)That the applicant introduced new evidence on a number of issues at the hearing. Including that he was required to report to the local police station each month, but was unable to explain why this was the case considering his evidence was that he was not guilty. Also, the applicant said at the end of the hearing that he had been issued with an arrest warrant. The Tribunal found this to be dubious given the applicant had never before mentioned or provided a warrant with the court documents he submitted.
(c)That the Tribunal found it ‘implausible’ that the Court would order the applicant in 2012 to produce a criminal like Nanthan, considering that the Sri Lankan police was under the Defence Ministry reporting structure along with “the fierce Sri Lanka Army” at the time.
(d)Finally, the Tribunal did not believe that Nanthan and his gang would go through the elaborate sequence described by the applicant, yet not kill the applicant if they wished to eliminate him. The Tribunal considered the applicant’s account that they did this to obtain the photos on his computer to be ‘contrived and self-serving’.
[40] CB:252-3.
The Tribunal concluded the following:[41]
28.In light of the Tribunal’s concerns above and having found that the applicant fabricated his claims about Sagara, the Tribunal is not satisfied that the applicant has been truthful in his claims about Nanthan. The Tribunal is not satisfied that Nanthan misused the applicant’s bank account illegally, as claimed, nor that the applicant was summoned to [the local] police station, accused of cheating anyone, has been/is involved in any court procedure, has any outstanding court matters or is of interest to any of the Sri Lanka authorities over this issue. The Tribunal does not accept that the applicant was required to produce Nanthan to the court, nor that he photographed him or reported this to the police. The Tribunal does not accept that the applicant was abducted, tortured or sexually assaulted by Nanthan or his associates or that he fled Sri Lanka because he feared being killed by these people. It follows that the Tribunal does not accept that if the applicant is returned to Sri Lanka, these people will find him and kill him because of these matters, as claimed. The Tribunal is not satisfied that the applicant will suffer significant harm from Nanthan’s criminal gang due to a lack of police protection or for any other reason.
[41] CB:252-1[28].
The Tribunal also considered the applicant’s claim that, if he were to return to Sri Lanka, he would be arrested and detained for his illegal departure. The Tribunal accepted that the applicant departed Sri Lanka illegally and that as a consequence he would face questioning, be detained for a relatively brief period, and be fined if found guilty.[42] However, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of returning to Sri Lanka that he will suffer harm which would amount to serious or significant harm.
[42] CB:253[33].
Accordingly, the Tribunal was not satisfied that the applicant was owed protection obligations, and that he did not meet the criteria under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).
APPLICATION BEFORE THIS COURT
The applicant in these proceedings raises two grounds for review:[43]
[43] Further Amended Application filed 8 September 2023.
Ground 1
The Tribunal committed jurisdictional error in that the Tribunal failed to: (i) consider whether corroborative evidence which consists of several court documents was genuine and (ii) give any genuine consideration, as to what extent it corroborated significant aspects of appellant’s claims of fear of harm.
Particulars
There were six court documents relating to his problems with Nanthan, who was an alleged persecutor of the applicant.
(a) CB 100-103 – Police report to the Magistrate, at Mannar Magistrates Court, Sri Lanka – dated 18/08/2011.
(b) CB 104-107 – Police report to Magistrate – dated 21/05/12.
(c)The Bank Statement from Hatton National Bank, (CB108, 110-111) dated 18/07/11 sent by the Bank to the Officer in Charge, Special Criminal Investigation Bureau, Mannar, which was copied to the Magistrate and received by the Court.
(d) CB 112-115 – Police report to Magistrate.
(e) CB 116-122 – The Court order dated 23/08/2011.
(f)CB 109 & top part of 120 – Record of call overs with the Magistrate’s name at the bottom.
(g)If the content of the above corroborating documents were considered by the Tribunal it could have come to a difference decision which is favourable to the applicant.
Ground 2
The Tribunal committed jurisdictional error in that it made strong adverse credibility findings about his problems with Sagara, which were not open on evidence or were unreasonable to make, and which led to the Tribunal’s rejection of the applicant’s case.
Particulars
(a) At CB252[24] the Tribunal found:
(i) The applicant fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia; and
(ii) This casts serious doubt over the credibility of his claims in general.
(b)At CB252[28] the Tribunal stated that having found that the applicant fabricated his claims about Sagara, the Tribunal is not satisfied that the applicant has been truthful in his claims about Nanthan, thus destroying his credibility about an entirely unconnected set of claims.
(c)The bases for the strong adverse credibility findings at [24] about the applicant’s claims related to Sagara, were weak and related to several matters in which the Tribunal took an extreme position which was unjustified.
Notwithstanding the limited grounds of judicial review, the applicant’s submissions to the Court, both written but particularly the oral submissions, went far beyond the scope of the application as framed.
DETERMINATION
Ground 1
Under ground 1, the applicant contends that the Tribunal committed jurisdictional error in that it failed to consider whether the corroborative evidence which consisted of several court documents was genuine and failed to give any genuine consideration as to what extent it corroborated significant aspects of the appellant’s claims of fear of harm.
In the submissions to this Court, the applicant’s counsel tediously went through the applicant’s documents, including the court documents, in what appeared to be an attempt to persuade the Court that the court documents were genuine and that the applicant’s story was consistent and corroborated by those documents. Much of what was submitted at hearing on behalf of the applicant went to the issue of a merits review.
Under the heading “Background” in these reasons, the Court summarised the applicant’s evidence to the Department and to the Tribunal. It is noted that there appear to be a number of inconsistencies in the details of the accounts given by the applicant, including, for example, when Sagara came to the applicant’s home and the applicant’s reasons as to why Nanthan was after him.
Some of the inconsistencies were noted by the delegate and some of the inconsistencies were noted by the Tribunal, although it may be that what the Tribunal noted as inconsistencies at times were erroneously referred to as that. It is of course not appropriate nor open to this Court to conduct a merits review, and as such any apparent inconsistencies or otherwise, are irrelevant for the purposes of the judicial review application in respect of Ground 1.
The applicant’s submission to this Court, inter alia, included submissions referring to the entry interview as disclosing a consistent story from the applicant early on in the process. It does not appear that either the delegate or the Tribunal member made any express reference to the entry interview in their reasons for decision.[44]
[44] Except for the delegate in one line, which appears to be a confusing reference. See supra n.9.
In the submissions to the Tribunal dated 26 August 2016, the applicant’s representative confirmed that the applicant made claims for protection which are set out in his protection visa application and his “DIBP” interview.[45] There was no mention of the entry interview.
[45] CB:196.
The Tribunal was not satisfied that the applicant had been truthful about his experiences in Sri Lanka or that any[46] of his evidence can be relied upon.[47]
[46] Emphasis added.
[47] CB:250 at [17].
The Tribunal, firstly, carefully considered the applicant’s claim in respect of Sagara, and came to the view that the applicant fabricated these claims for the purpose of seeking a protection visa in order to remain in Australia.[48] This finding led the Tribunal to have serious doubt over the credibility of the applicant’s claims in general. The Tribunal then considered the applicant’s claim in respect of Nanthan.
[48] CB:252 at [24].
The Tribunal noted that the applicant at hearing “introduced new evidence on a number of issues” and that “this” included that on the orders of the Court, the applicant had to report to the police on the last Sunday of each month. The applicant’s counsel submitted that the Tribunal was wrong about this as the applicant had disclosed this already, and pointed to the court documents.[49]
[49] CB:122.
True, the court documents did indicate that it was a term of the applicant’s bail condition that he report monthly to the police. However, not only did the Tribunal not give these documents any weight but the applicant had not previously said anything about reporting every month to the police in: his entry interview; in his statutory declaration; or in his PV interview. He said he was granted bail. What he did say though, in his PV interview, is that he needed to attend court every three months.[50]
[50] CB:139.
Submissions were made to this Court about the findings of the delegate. While the delegate considered the court documents, and gave the applicant the benefit of the doubt in that the delegate accepted that the applicant was implicated in the case of defrauding people of their money, the Tribunal did not give the court documents any weight and did not accept that the applicant was implicated in the manner suggested.
The Tribunal is of course not bound by any of the findings of the delegate. The applicant does not raise, in his application for judicial review, any ground/complaint about the Tribunal making contrary findings to that of the delegate about these or any other matters.
It was submitted on behalf of the applicant that “why the delegate’s findings are important is that it alerts the Tribunal to the need to be cautious in making serious adverse credibility findings against the applicant when going against the findings of the delegate”. Such submission is rejected. The applicant was well aware that his credit was an issue before the Tribunal, he was asked many questions about his story and about matters which the Tribunal member had concerns with. The veracity of his documents was also clearly in issue.
During the Tribunal hearing, the member told the applicant that:[51]
Another issue that I am bound to take into account is the prevalence – is the fact that there is a lot of document fraud in Sri Lanka… unless a document is verified by the department it is very difficult for me to attach much weight to any documents that are submitted in support of an application.
And later:[52]
[A]s I said to you, it is very easy to get false documents in Sri Lanka, so I can’t attach weight to it.
[51] T:44 line 35.
[52] T:45 line 32
The matter of there being a prevalence of fraudulent documents in Sri Lanka and that there would be no weight attached to the applicant’s documents unless they were verified by the department, was squarely raised with the applicant at the Tribunal hearing. The applicant did not say anything in reply, nor did his representative.
The applicant’s representative was asked if there was anything he’d like to say (in general), to which he replied “Yes, I have a lot of things to say” and asked for the opportunity of a submission in writing.[53]
[53] T:47 line 16-22
Indeed, even after further written submissions were provided to the Tribunal, the applicant remained silent in respect of addressing the member’s concerns about the court documents provided by the applicant or that there would be no weight given to them.
In BDS17 v Minister for Immigration and Border Protection[54] Flick J said:
[102]The balance of that Ground asserted that the primary Judge erred in failing to hold that it was not open to the Tribunal to find that the documents which attracted the Tribunal’s observations at para [26] of its reasons were fraudulent and/or it was not open to give them “no weight”. As that paragraph made clear, the “prevalence of document fraud in Sri Lanka” was a matter which was “discussed” with the now-Appellant during the course of the Tribunal hearing.
[103]Had it been necessary to resolve this aspect of the Ground of Appeal, the argument would have been rejected.
[104]The reasoning of the Tribunal, it is considered, falls short of any finding that the documents were “fraudulent”; but there is no questioning the conclusion of the Tribunal that it “[could not] attach weight to any of the documents”.
[105]The submissions advanced on behalf of the Appellant in the present proceeding were a mixture of speculation and assertion. The submission, for example, that it did “not appear that the Tribunal scrutinised the documents”, is not supported by the Tribunal’s statement (at para [15]) that it had “had regard to the applicant’s written and oral evidence to the Department and the Tribunal”. It is not lightly to be inferred that the Tribunal did not have “regard to” – or, to employ the language of the Appellant, that it had not “scrutinised” – documents in circumstances where it has indicated to the contrary. And the further submissions advanced to this Court, for example, that the “four court documents were comprehensive” and “so detailed that any fraud would become apparent to the reader”, are more submissions as to the weight to be given to the documents rather than submissions in aid of a conclusion that the Tribunal failed to give proper consideration to each of the documents.
[106]This aspect of the Ground of Appeal, and the counterpart argument before the Federal Circuit Court, are (with respect) nothing more than invitations to the Court to engage in impermissible merits review. The now-Appellant was given the opportunity to address the Tribunal on the reliability of the documents in question when the matter was “discussed” during the Tribunal hearing. It was for that Tribunal, and not the Federal Circuit Court or this Court, to determine the weight to be given to the documents.
[54] [2018] FCA 1683.
Part of the submissions made by the applicant to this Court, included a submission that Flick J was not justified in his reliance on [15].
While the Court is not bound by the Federal Court’s decision in respect of an appeal of the Court’s earlier decision in respect of the applicant’s judicial review application, it is still a matter that is highly persuasive. In any event, for reasons which are explained below, the applicant’s submissions regarding [15] of the Tribunal’s reasons are rejected.
It was submitted before this Court that [15] of the Tribunal’s decision in referring to the “written and oral evidence to the Department and the Tribunal” was limited to the applicant’s statutory declaration and the oral evidence at hearing, and was not a reference to any of the documents which the applicant had submitted, either to the Department or the Tribunal. Such a submission is rejected in its entirety.
The applicant’s own evidence to this Court made it clear that the Tribunal member was referring to all of the documents as well as the applicant’s own evidence. The member said to the applicant:[55]
I have before me the files from the Department of Immigration, as well as the materials that you have provided to the tribunal. In making my decision, I will be relying on the information in those files, what you say to me today and relevant material from external sources…
… can I start by asking you if everything that you have said in your evidence to the department and submitted to the department and the tribunal to date is true and correct.
[55] T:4.30-35, 5.45-6.5.
The Tribunal member was clearly referring to all of the evidence, not just what the applicant had said.
The Tribunal reasons[56] disclose that the Tribunal had regard to the applicant’s written and oral evidence to the Department and the Tribunal. It is not in issue that the Tribunal had before it all of the documents which the applicant had lodged in supported of his application, as well as the documents he provided to the Tribunal. Indeed, the Tribunal member had before it the applicant’s file from the Department.
[56] CB:250 at [15].
As noted at [84] above, the submission of the applicant must be rejected. As [15] of the Tribunal’s decision indicates, the Tribunal had regard to all of the evidence.
The Tribunal’s reasons must be read as a whole, they should be considered fairly and not be read critically and one should not read the reasons with a fine tooth-comb attempting to find fault.[57]
[57] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.
The facts herein are distinguishable from those that occurred in the authorities relied upon by the applicant, such as, for example, BUW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[58] WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs,[59] NAJT v Minister for Immigration & Multicultural & Indigenous Affairs,[60] and BZD17 v Minister for Immigration and Border Protection.[61] The Court however notes that the legal principles which the applicant’s counsel took the Court to are well accepted.
[58] [2023] FCA 238.
[59] [2004] FCAFC 74 (“WAIJ”).
[60] (2005) 147 FCR 51; [2005] FCAFC 134.
[61] (2018) 263 FCR 282; [2018 FCAFC 94.
Given that the Tribunal indicated at [15] of its reasons that it had regard to all of the applicant’s documents, and that it was made clear to the applicant during the hearing that the member had before her the departmental file, and in coming to the conclusion that the Tribunal would give the court documents no weight, the applicant’s contention that the Tribunal did not consider the court documents is not made out.
The Tribunal did not ignore the allegedly corroborative material and fail to consider it in an intellectually active way.[62]
[62] WAIJ at [27]
The Tribunal did not come to any conclusion that the court documents were fabricated, as suggested in the applicant’s outline of submission.[63] It did not reject the evidence in the court documents, it simply gave it no weight, a matter which was entirely within the Tribunal’s purview, for reasons which were explained and which the applicant chose not to say anything about after being put on notice by the Tribunal.
[63] Filed 8 September 2023.
For all of the reasons explained above at [64] to [93], the Court finds that the Tribunal did give proper, genuine and realistic consideration of the applicant’s evidence, including the court documents.
Ground 1 is not made out.
Ground 2
Under this ground, the applicant claims the Tribunal fell into jurisdictional error in making strong adverse credibility findings regarding his problems with Sagara, which the applicant says were not open on the evidence or were unreasonable for the Tribunal to make. These findings lead to the Tribunal’s rejection of the applicant’s case in relation to Nanthan.
The relevant findings of the Tribunal in respect of Sagara are as follows:[64]
18.The applicant's confrontation with Sagara during the 2010 presidential election was central to his claim of persecution in Sri Lanka for reasons of his political opinion. However, his evidence about the election campaign and its aftermath was vague, implausible and inconsistent with country information from independent sources.
19.In his written claims the applicant did not indicate which party he supported in the campaign, referring only to 'the opposition party'. At hearing he told the Tribunal that it was the [named political party]. Initially he said he had been supporting the [named political party] for 2-3 years because it did not discriminate on race and religion, supported free education and health care; and that his involvement included going to meetings and pasting posters. However, when asked what was discussed at these meetings, he shifted his evidence to say that his main party activity was putting up hundreds of posters in support of the [named political party] candidate, whom he identified as [named party member], during the 2010 presidential election campaign. The applicant said his confrontation with Sagara, a supporter of the ruling SLFP, took place when he saw the applicant and his friends pasting their posters on top of the Rajapaksa's posters.
20.Asked to describe the posters he put up, the applicant said they bore [named party member’s] photograph, his name and the [named political party] party symbol, which he identified as the elephant. According to country information, however, [named party member] contested the elections on the New Democratic Front ticket under the Swan symbol but was endorsed as the common opposition candidate against incumbent president Mahinda Rajapaksa by several political parties including the [named political party] and declared himself a 'non-party candidate'. [Named party member] only joined the [named political party] in June 2016. The Tribunal finds implausible that if the applicant was so actively involved in putting up posters for [named party member’s] campaign in 2010, he would not know this basic information and was not persuaded by the applicant's attempt to explain this by his comment that the posters were not all the same and that some had the leader of the [named political party] and some had other leaders featured.
21.The Tribunal's concerns are compounded by the applicant's inability to remember when the first incident with Sagara took place, or even the month of the 2010 election. Given the critical impact the applicant claimed these events had on his life and well-being, the Tribunal is not persuaded by the explanation offered by the applicant's representative in his post-hearing submission, that he could not recollect these dates because he was nervous and was trying to put his past behind him and move on with life in a new country.
22.Further, the applicant gave inconsistent evidence as to what transpired after his initial confrontation with Sagara. He told the Tribunal that, the day after the announcement that Rajapaksa had won the election, Sagara came to his house; set fire to his bike, broke windows and threatened to kill him. By contrast, in his written evidence the applicant said that Sagara came to his house and told his father he would kill the applicant and that he set fire to his bike, broke windows and again threatened to kill him after his second encounter with Sagara in 2013 (paragraphs 7.a and 7.b).
23.Given the applicant's evidence that Sagara supported the government mainly in order to protect his illicit alcohol production business, the Tribunal is dubious that he would have engaged in the prolonged pursuit of the applicant or 'election related violence' after his candidate won the election, as suggested by the applicant. Nor does the Tribunal find it plausible that, knowing of Sagara's criminal activities and imprisonment for murder, the applicant would draw attention to himself in a chance encounter by apologising to him about an altercation several years earlier; rather than escaping back to Chillaw, where he was allegedly in hiding from another criminal. The Tribunal is not persuaded by the applicant's claim that he did so thinking that, as it was New Year's day, Sagara might be 'gracious and not hold anger against him'.
[64] CB:250-2.
The applicant submitted to the Court that the Tribunal was wrong at [19] when it noted that the applicant did not indicate which party he supported in the campaign. The Tribunal was referring to the applicant’s written claims. The Tribunal’s reference as to what the written claims contained is correct, the applicant did not indicate in his application for protection visa and accompanying statutory declaration which party he supported in the campaign. It is also correct, as the applicant submits, that he had done so in his entry interview. However, the Tribunal was not referring to the entry interview, the Tribunal was referring to the applicant’s written claims. The Tribunal had the benefit of all of the applicant’s evidence, as well as the benefit of hearing his oral evidence to the Tribunal. While the applicant submitted in his outline that the Tribunal expressed concerns too frequently and intrusively about credibility of many subjective matters, the Tribunal was simply putting its concerns to the applicant and inviting him to address what the Tribunal considered were problematic aspects of the applicant’s evidence. Taking into consideration the transcript of the applicant’s evidence before the Tribunal, it was open to the Tribunal to conclude that the applicant’s evidence “shifted” in the manner noted at [19] of its reasons.
In respect of paragraph [20] of the Tribunal’s reasons, it was submitted on behalf of the applicant that the applicant did know basic information about election posters as evident from the transcript and that the Tribunal did not give the applicant sufficient opportunity to explain about the election posters. These submissions quibble with the findings of the Tribunal and seem to contend that the applicant was not afforded procedural fairness. In so far as the second matter is concerned, this is not a ground of judicial review. In any event, the applicant was afforded procedural fairness, he was clearly given opportunity to answer questions during the hearing and provide further submissions. The findings of the Tribunal at [20] were open to it, noting that the country information the Tribunal had regard to did not support what the applicant was telling the Tribunal member.
In respect of paragraphs [21] and [22] of the Tribunal’s reasons, it was submitted on behalf of the applicant at hearing that the applicant was consistent in his story in respect of Sagara, and that it was the delegate who misunderstood. The applicant’s written submissions to the Tribunal submit that while the applicant was consistent with the harm caused by Sagara he mixed up the two incidents, as those issues occurred at least 3 to 7 years before and it was not reasonable to expect the applicant to have clear and consistent recollection.
The Tribunal explained in [21] and [22] why it had concerns and why the applicant’s evidence was inconsistent. These were matters that were open to it to conclude on the evidence. The Tribunal was not obliged to accept the applicant’s reasons for not being able to remember certain things, and in rejecting the applicant’s explanation about this (in the submissions to the Tribunal) it gave reasons as to why it rejected it. The Tribunal was not obliged to overlook the inconsistencies in the applicant’s evidence. The applicant does not explain why it was not open to the Tribunal not to come to the conclusions it came to in [21] and [22].
At [24] the Tribunal then concluded that, considered together, the reasons outlined above, i.e. [19]-[23], lead the Tribunal to conclude that the applicant was never involved with the named political party and that he never campaigned for the named candidate in 2010. Therefore, the Tribunal did not accept that the applicant ever had an altercation with Sagara during the election campaign or apologised for it two years later, nor that Sagara had threatened to kill him, broke windows in his house or burned his bike, either in 2010 or 2013. These were not conclusions which were illogical or legally unreasonable, they flowed from earlier findings. Given these conclusions, it was entirely open for the Tribunal to then conclude that the applicant had fabricated the claim concerning Sagara. Such findings led the Tribunal to have serious doubt about the credibility of the applicant’s claims in general.
The Tribunal then went on to consider the detail of the applicant’s claim in respect of Nanthan. It did not dismiss it out of hand simply because it found adverse credit findings against the applicant. It was in light of the Tribunal’s concerns in respect of the claim about Nanthan and the finding that the applicant had fabricated the claim about Sagara, that the Tribunal was not satisfied that the applicant was truthful in his claim about Nanthan. Once again, such finding was not illogical or legally unreasonable, indeed it was very much open to the Tribunal to make it for reasons which have been explained.
Ground 2 is not made out.
CONCLUSION
For all of those reasons, the application for judicial review is dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 16 November 2023
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