BEP15 v Minister for Immigration

[2018] FCCA 169

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEP15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 169

Catchwords:
MIGRATION – Protection visa application – relocation – reasonableness of relocation – conflation of convention and relocation tests – no matter of principle.

Legislation:

Migration Act 1958 (Cth), s.91R

Cases cited:

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032
MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394

First Applicant: BEP15

Second Applicant: BES15

Third Applicant: BET15

Fourth Applicant: BEW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1476 of 2015

Judgment of: Judge Riethmuller

Hearing date: 14 December 2017

Date of Last Submission: 14 December 2017

Delivered at: Melbourne

Delivered on: 31 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Gilbert

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent dated 28 May 2015.

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1476 of 2015

BEP15

First Applicant

BES15

Second Applicant

BET15

Third Applicant

BEW15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants apply for judicial review of a decision of the Refugee Review Tribunal (as the second respondent was then known) made on 28 May 2015, affirming a decision of the delegate of the Minister not to grant the applicants protection visas. 

2. The first applicant arrived in Australia as a dependent of his wife, the second applicant, who was on a student visa in March 2009.  Further student visas were granted in May 2010.  They travelled offshore in late 2010 through to the end of January 2011 and again in March 2011. 

3. In December 2011, they were refused a Temporary Work (Skilled) (Class UC) visa and sought a merits review at the Migration Review Tribunal (“MRT”).  They travelled offshore for a third time from January to March 2013.  Whilst offshore, they made a fresh application for a Temporary Work (Skilled) visas.  The MRT found that it did not have jurisdiction to review their first Temporary Work (Skilled) visa application made on 2 April 2013. 

4. On 2 May 2013, they applied for Protection (Class XA) visas. The second application for a Temporary Work (Skilled) visa was refused on 1 August 2013. The applicants’ sons were born in Australia on 5 December 2013 and are the third and fourth applicants in this application.

5. On 11 March 2014, a delegate of the first respondent refused to grant the applicants protection visas and on 28 May 2015, the Tribunal affirmed the delegate’s decision.

6. The application for review of the Tribunal decision was filed on 29 June 2015 by the applicants’ then legal representatives, TAI Lawyers.  In November 2015, the matter was listed for a final hearing before me on 20 July 2017.  Consent orders had been made for the applicants to file written submissions 14 days before the hearing.  On 20 July 2017, neither the applicant nor his legal advisor from TAI Lawyers was in attendance.  The applicants’ lawyers had filed no written submissions at that point.

7. Following an email from my Associate, a representative of TAI Lawyers attended Court, stating that the firm had not received any Notice of Listing, as it had been sent to the firm email address listed on the documents filed with the Court which was no longer functional.  The matter was adjourned to 6 September 2017.  The applicants’ representative filed submissions on 30 August 2017. 

8. On the adjourned date it became apparent that the applicants’ representative appeared to be unfamiliar with this area of law.  For example, the written submissions, as filed, named the applicants, rather than using their pseudonyms and made submissions such claims that the first and second respondents:

   … have not given due wastage to the evidence and materials placed before the Member (see p.4).

9. Whether the respondents have not given due ‘wastage’ (presumably intended to be ‘weight’) to the evidence and materials placed before the Member are claims that fall into the category of merits review which is not open in judicial review proceedings. Some of the other submissions made little sense, for example, submissions that the harm feared by the applicants (which was accepted as being a serious harm by the Tribunal) was within the requirements of s.91R of the Migration Act 1958: this was not an issue as it had been accepted by the Tribunal.  Other parts of the submissions were simply hyperbole, for example:

   It is quite astonishing how the second respondent and first respondent have selectively used the guidelines [the UNHCR eligibility guidelines] to refuse grant of protection visa to the applicant.

10. As the Tribunal accepted that the applicants were at real risk of significant harm, the central issued was whether or not it was reasonable for them to relocate within Sri Lanka.   On the issue, the applicants’ previous advisor made submissions simply that:

    It was well established earlier that both the SR and the FR have wrongly evaluated country information.  It is a well-known fact that Sri Lanka forces and para military forces linked to the government can operate through the small island of Sri Lanka.  It is academically and legally unsound to propose that applicants can escape from real harm if they relocate outside of North Western Province (NWP).  Therefore, we are not going to expand our submission on this as on the face of it, it is illogical and irrational.  In the case of Minister for Immigration and Citizenship v SZMDS, the High Court held that “illogicality” or “irrationality” sufficient to give rise to jurisdictional error [FN: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. (This case involves, an appeal where protection visa refused by the Refugee Review Tribunal (RRT) on the grounds that decision-maker not satisfied respondent’s fear of returning to Pakistan well founded.)].  We submit that SR’s and FR’s these conclusions are illogical and irrational process of reasoning which is amounts to contribute to an error of law.

    We submit that the possibility of relocating within Sri Lanka should not be deemed as a basis for rejecting Applicant’s protection visa claims and this is especially so where the risk of harm exists throughout the nation.  Relocating within Sri Lanka is not a viable option for the Applicants and therefore, the Applicants satisfy all the relevant criteria required for a Protection (Class XA) visa.

11. The most cursory reading of this part of the submissions shows their absolute inadequacy, even before comparing them to the later submissions prepared by Counsel.

12. The quality of the previous submissions are best summarised by the response submissions by counsel for the respondent in their submissions as follows:

    31. The grounds contained in the application are as follows:

    1. “The First Respondent did not take into proper consideration and did not give due weight to evidence of the Applicants well-founded fear of persecution for reasons of being a member of political opinion.

    2. The First Respondent did not take into proper consideration and did not give due weight to evidence of the Applicants well-founded fear of persecution for reasons of being a member of a particular social group.

    3. The First Respondent did not take into proper consideration and did not give due weight to evidence of the Applicants well-founded fear of persecution for being a failed asylum-seeker from a Western Country.

    4. The First Respondent relied on irrelevant considerations and did not correctly evaluate the evidence before them.”

    5. The First Respondent over placed too much consideration into country information material before them in making a decision to deny the Applicants a Protection (Class XA) visa.”

    32 These grounds are un-particularised and further appear to seek review of the delegate’s decision, which is a primary decision as it is reviewable under part 7 of the Act. Section 476(2)(a) and s 476(4)(a) of the Act provide that the Court has no jurisdiction to review such a decision.

    33 Insofar as the grounds are intended to refer to the Tribunal’s decision, the respondent submits that there is no merit in the application for the following reasons.

    Grounds 1 - 3

    34.  In the absence of proper particularisation, these grounds are largely meaningless. In any event, the Tribunal plainly did consider the applicant’s claims to fear harm and evidence in relation to his actual or imputed political opinion, membership of a particular social group of wealthy business people in Sri Lanka (at CB 291-293, [114]-[121]) and particular social group of failed asylum seeker from a Western country (at CB 294, [127]-[128]). Further, in relation to ground two of the application, the Tribunal accepted the applicant’s claims that he faced harm as a result of his imputed political opinion and as a result of his membership of wealthy business people in Sri Lanka in his home region (at CB 292-293, [118]-[120]), but found that it was reasonable for the applicant to relocate in any of the major urban areas outside the North Western Province, such as Colombo, Kandy or Galle (at CB 294-295, [130]-[133]). The Tribunal otherwise referred to the applicant’s written submissions to the Tribunal before and after hearing (at CB 278-279, [35] and CB 289, [101]-[104]), the applicant’s oral evidence and supporting documents given at the hearing (at CB 279-289, [36]-[100]), as well as the claims made orally and in writing before the delegate (at CB 276-278, [27]-[31]).

    35. In relation to ground three, the Tribunal’s findings in relation to the applicant’s claim to fear harm as a failed asylum seeker turned on its consideration of the applicant’s particular circumstances and country information which was before it (at CB 294, [127]-[128]). The selection and weight of country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] CAFC 10 at [11] – [13]; Applicant NABD of 2002 v Minister for immigration & Multicultural Affairs (2005) 216 ALR 1 at [8] per Gleeson CJ). These grounds of review do no identify any jurisdictional error in the Tribunal’s decision.

    Ground 4

    36. The first respondent submits that is not apparent from the material before the Court that the Tribunal took into account any irrelevant consideration or failed to take into account any relevant consideration. The Tribunal properly considered the applicant’s claims and evidence in support of his application for the Visa (see CB 276-289, [27]-[104]) and its findings were open to it on the evidence before it for the reasons it gave.

    37. In this regard, the Tribunal’s decision record indicates that it carefully and comprehensively considered the applicant’s claims to fear harm on the basis of his political opinion and membership of particular social groups: CB 291-291, [114]-[121] and [127]-[128]. The Tribunal was ultimately not satisfied that the applicant faced a well-founded fear of persecution or real risk of significant harm based on its relocation findings. Those findings were open to the Tribunal for the reasons it gave: CB 293-296, [122]-[126], [130]-[134] and [138]-[140]. The Court cannot review the merits of the Tribunal’s findings in this regard (Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

    Ground 5

    38 The applicant’s complaint about the Tribunal’s reliance on country information plainly cannot succeed. The Tribunal had regard to country information, which it discussed with the applicants at the hearing (see, for example, CB 281, [53], CB 287-288, [93]-[97], and CB 293, [123]), and relied on it in accepting that the applicants would face harm in their home region from political opponents (CB 293, [120]), but not outside it (CB 293-294, [123]-[124]) and that relocation in Sri Lanka was possible (CB 295, [131]-[133]). Those findings were findings of fact, open to the Tribunal based on the material before it. It is well-established that the choice and assessment of country information is a factual matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11-13]). The first respondent submits that ground 5 merely indicates disagreement with the Tribunal’s assessment of the country information before it and invites impermissible merits review.

13. In short, the submissions appeared to be not only misguided but, at best, garrulous and of no assistance to the applicants.  Whilst the written submissions as drawn were clearly untenable, the case did appear to raise a serious issue that required careful exploration.  In this case, the Tribunal had accepted that the applicants were at real risk of serious harm in the area in which they had been living in Sri Lanka.  The protection visa was refused on the basis that they were able to relocate away from the North Western Province to another major centre such as Colombo (only around two hours away from where they had been living).

14. Given the nature of the proceedings (protection visa applications where the applicants claim that they are at real risk of serious harm had been accepted), and the garrulous and ineffective submissions by the previous lawyer (who had also failed to file submissions on time, failed to maintain his firm’s email address to receive documents from the Court, and failed to appear on the first occasion), I directed that the solicitor apply part of the funds provided to him by his clients to briefing counsel to appear on their behalf on an adjourned date, to ensure their case was properly put to the Court.

15. I adjourned the matter to enable that to occur, to ensure that the applicants would receive not only a formal hearing, but a substantively fair hearing in circumstances where they had paid for legal assistance, in a case that involved a significant and difficult issue. 

16. The applicants then engaged their present counsel, Mr Gilbert QC, who argued the applicants’ case on their behalf.  Not surprisingly, the applicants did not pursue the grounds set out in their original application or the submissions filed by their previous legal representative.  Leave was granted to the applicants to rely upon an amended application and submissions that Mr Gilbert had prepared. 

17. The applicants made a number of claims before the Tribunal. They claimed that they left Sri Lanka to escape harm from government security forces and paramilitary forces, and that they were, therefore, at risk of being either killed or kidnapped or tortured. They said that they had supported the present regime in the past. However, due to the regime’s undemocratic, oppressive and violent attitudes, they no longer supported them.

18. Most importantly, given the time that has passed since they first came to Australia, they claimed that during their visit to Sri Lanka in 2013, they were invited to attend and support a “government supporters district political promotional program”. When they refused to attend and advised they no longer supported the government, numerous threats were said to be made against them. The applicants provided five letters of support, including two letters from prominent members of the UNP.

19. By the time the case reached the Tribunal, there was a further claim based on the fact that the male applicant had inherited large amounts of wealth from the applicant’s father-in-law, making him a political target because of his wealth and claim that he was also a threat to the People’s Alliance (“PA”) due to his knowledge of widespread corruption within the party. 

20. Submissions were made that, whilst there was no country information which specifically indicated that low-level PA supporters were targeted in Sri Lanka if they discontinued their support, the applicants’ circumstances were unusual as a result of the wealth that was inherited.  At the hearing before the Tribunal, the applicant was represented by his agent and an interpreter, and provided a number of documents about properties and other assets of the second applicant’s family.  On the issue of relocation, post-hearing submissions were made alleging that the applicant’s wealth, reputation and prosperity would mean that he would continue to be a target if relocating to another part of Sri Lanka. 

21. At the hearing, the Tribunal found the evidence provided by the applicant to be largely credible and consistent: see para.107.  The Tribunal accepted that the applicant and second applicant both came from families that had historically supported the PA and that the applicant’s father-in-law was a prominent and wealthy businessman.  It also accepted that the applicants now have a role in conducting the business’ affairs: see para.108. 

22. The Tribunal accepted that the applicant had assisted the PA in the 2004 election and supported a local political figure, ‘X’, who had approached him on several occasions requesting that he participate in activities supporting the political party. Whilst the Tribunal did not accept that he was threatened prior to 2013, it did accept that when he refused to provide financial support to the local candidate for PA in early 2013, he was repeatedly threatened and harassed. 

23. The Tribunal did not accept that the applicants were at risk because they were aware of alleged corruption by the PA.  However, the Tribunal accepted that there was a real chance that PA supporters would seek to harm the applicant or a member of his immediate family if he refused to provide financial support: see para.118.  The Tribunal also accepted that adequate state protection was not available to the applicant in his home area from the risk of harm he faces: see para.120. 

24. As a result, the real question that arose in the case was whether or not the applicants could relocate in order to avoid harm.  The Tribunal did not accept that the local politician, X, would pursue them outside of his local district, nor that other members of the party in other areas would pressure them.  As a result, the Tribunal was not satisfied that there was a real chance of the applicants suffering serious harm outside their home area and concluded that it was reasonable for them to relocate away from their home region to an urban centre in Sri Lanka.

Amended Grounds of Application

1. The amended grounds of application were in the following terms: 

   1.  The decision of the Refugee Review Tribunal was affected by jurisdictional error in that it made a finding which was not based on evidence:

   Particulars

   (a) The Tribunal accepted that the first applicant had a well founded fear of persecution in his home area in Sri Lanka;

   (b) In assessing whether this fear extended to Colombo, the Tribunal based its decision upon information which did not exist

   2. In the alternative to ground 1, the decision of the Refugee Review Tribunal was affected by jurisdictional error in that it failed to carry out the statutory task:

   Particulars

   (a) The Tribunal had the sworn evidence before it, from the applicant and his wife, to the effect that if they were to move from their home area to Colombo, they would be at risk of serious harm from the person or persons who the Tribunal had accepted were the perpetrators in their home area;

   (b) The Tribunal failed to weigh their evidence against any other evidence

   3. In the alternative to grounds 1 and 2, the decision of the Refugee Review Tribunal was affected by jurisdictional error in that it failed to deal with an integer of the claim made by the applicant.

   Particulars

   (a) The applicant claimed that he feared that he would be threatened and harmed if he were to live in Colombo;

   (b) The Tribunal dealt with the claim as if it was only a fear that he would be the subject of extortion in Colombo

1. The applicants identified that consideration of relocation is a two-stage process: first, inquiring and finding that the proposed location is one where there is no well-founded fear of persecution (in the sense of real risk of serious harm); and secondly, determining whether or not relocation is reasonable. Importantly, the risk of harm in the proposed relocation location need not rise to be a well-founded fear of persecution, as it is relevant to the question of reasonableness, not satisfaction of s.91R: see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032. It is an error to conflate the two issues: see MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 at [21].

2. Conveniently, the applicants argued the three grounds together on the basis that they raise the same underlying issue, which can be articulated as different categories of error by the decision-maker. 

3. It was accepted that the Tribunal member did first consider whether or not there was a real risk of serious harm in the proposed relocation location before going on to consider the reasonableness of relocating, the first step being undertaken at paras.122 to 129 of the decision and the second step at paras.132 and 134 of the decision.  At para.123, the Tribunal member said: 

   123. As put to the applicants at the hearing, on the country information before me, I do not accept that provincial level politicians such as [X] have the means or any real intention to extort financial support from wealthy individuals, including past supporters, outside their local area of political control or influence, which in [X’s] case I find to be the NWP.  I find that the reason that the applicant has been targeted for extortionate demands by [X] and his supporters in the PA, and why there is a real chance of him being subjected to those demands in the future, is because he supported X in the past and was living and working in [X’s] area of political control or influence in the NWP.  The country information does not indicate that [X] or his supporters in the PA have targeted or have the means to target wealthy individuals outside the NWP for extortion or otherwise for harm.  I do not accept that if the applicants were to return to Sri Lanka and live outside the NWP they would face a real chance of suffering serious harm either in the form of extortionate demands or as a consequence of refusing those demands at the hands of X or his supporters in the PA. (emphasis added)

4. It is unclear from the reasons what country information was relied upon by the Tribunal member. There is an appendix to the decision listing information from external sources at Court Book 303. However, as was submitted by the counsel for the applicants, the county information is silent on the relevant issue. Prima facie this is a finding without any evidentiary basis.

5. It was argued by counsel for the Minister that the effect of this paragraph (and the decision) was that the Tribunal member was referring to an absence of any country information supporting the claims, rather than country information actually addressing the issue.  The following comments of the Tribunal member at the hearing (T48.40) were referred to:

   MEMBER: …..I would also – I – I certainly have checked and politicians in Sri Lanka have their own groups of men who go around trying to encourage people or intimidate people into supporting them, but I don’t think there is any country information that – that those – those groups of men would travel to another part of Sri Lanka to try and intimidate someone to help them outside their own area of control.  So I have a problem where there – there seems to me there’s an absence of country information to suggest that if people move from the North West Province to Colombo, people that the – the men who work for the politicians in Colombo would go and chase them to – in the North West Province would chase them to Colombo.

6. The Tribunal member also said (at T51.41): 

   I can only base my decision on the evidence in front of me.  But I have – for me there is a real issue, and I come – I come back to this – is that I have not… anyone saying – and I include other Africans and other people – anyone say that, “I had a problem with one local provincial politician, and then I went somewhere else, in another part of the country, and… local provincial politician came and got me in another part of the country.”  I’ve never seen any report of that happening, and I’ve never heard anyone say it…

7. There is no question (from earlier passages in the transcript, for example, T31.10 and T47.26) that the applicants had a strong subjective fear that they would be found in other parts of the country and killed. As counsel for the applicants pointed out, a subjective fear can be relevant to the relocation question:  see SZATV. This claim was supported by further submissions filed by their advisor (at court book pp.238 to 269) which included claims that Sri Lanka was a dangerous place for refugees to return to, including news reports of violence in Colombo and other places, particularly involving murders of those holding property.

8. I have reflected on the appropriate reading of para.123 of the reasons in this context. The evidence as to the country information before the Tribunal shows that it is a case where there was no relevant country information on this issue, and that, at best, the Tribunal could only rationally draw an inference from an absence of similar allegations in the country information. Given the nature of the case, the level of demands being made, and the particular level in the political hierarchy, it would be a real question as to whether or not one would expect to see country information of this type of conduct by X or others. No analysis was made of what the country information did record and whether an inference should be drawn from the absence of references to similar cases.

9. If the paragraph refers to an inference drawn from an absence of country information indicating that local politicians engaged in extortion, it does not sit easily with the proposition accepted by the Tribunal that a local level politician had extorted a wealthy individual within his district.  Yet, such proposition had been accepted by the Tribunal member earlier in the decision when the Tribunal said:

   117. However, as noted in the country information as set out in the delegate’s decision (D1, folios 181-182), there has been evidence in recent years of connections between established and political and criminal groups and widespread corruption in Sri Lankan political parties.  As a result, I accept that [X], as a provincial level politician for the PA, expects that those who have supported him in the past and who are financially successful will contribute to his political activities.  I have accepted that the applicant has been subjected to repeated threats and harassment by [X] through his supporters during the applicant’s most recent visit to Sri Lanka in 2013.

   118. I find that [X] and his supporters are now targeting the applicant because he is now financially well off in a way that he was not before he left Sri Lanka in 2009 as a result of the wealth he and the second applicant have inherited from his father-in-law.  I accept that [X] that his supporters may seek to force the applicant to provide them with financial support by physically harming the applicant or a member of his immediate family when the applicant refuses to provide any financial support to [X] or the PA.  As a result, I accept that there is a real chance that [X] and his supporters will seek to harm the applicant, or a member of his immediate family, if he continues to refuse to provide [X], his supporters and the PA with financial support while continuing to live in the applicants’ home area.

10. It seems more likely from the words of the decision that the Tribunal member erred and acted on the basis that there was country information on the issue when there was not such information.  If the Tribunal member was intending to refer to an inference drawn from the absence of country information, it is difficult to ascertain where the Tribunal member had weighed the evidence of the applicants, which had been accepted on their claims with respect to extortion (uncorroborated by country information), yet rejected with respect to the fear of extortion in the city by the same criminal politician.  It is difficult to see how an absence of country information can effectively indicate that X and his supporters did not have the means to target wealthy individuals outside the local area (although, only two hours away), even though the applicants’ evidence on this issue of extortion (at least within the local area) had been accepted.

11. On turning to consider the reasonableness of relocation, the Tribunal member identified at para.130: 

    130. As I found the applicants do not face a real chance of suffering serious harm for a Convention reason outside the NWP, I must now decide whether it is reasonable to expect the applicants to relocate away from their home area in the NWP if they were to return to Sri Lanka in the reasonably foreseeable future.

12. The Tribunal member went on to consider the ability of the applicants to relocate, and their capacity to be able to obtain basic necessities of life: see para 131. The Tribunal also concluded that relocation did not require them to engage in modification of their conduct or “avoiding action” to avoid “a real chance of suffering serious harm in those areas”: see para 132. As the applicants’ wealth is the cause of the problems there can be no argument that the applicants could subsist in a new location.

13. The Tribunal member then concluded:

    133. In light of the above, I am satisfied that it is reasonable, taking into account all the applicants’ circumstances, to expect the applicants to relocate away from the NWP to other major urban centres in Sri Lanka, such as Colombo, Kandy or Galle where the chance of the applicants suffering serious harm for any reason is remote.

    134. As I have found that the applicants do not face a real chance of suffering serious harm for a Convention reason on their return to Sri Lanka outside the NWP, it is unnecessary for me to consider whether effective state protection will be available to the applicants within Sri Lanka outside the NWP.

14. It is significant that throughout the discussion as to the risk of harm in other parts of Sri Lanka, the Tribunal had clearly focused upon the test for serious harm, referring to it in paras.122, 123, 125, 126, 127, 128 and 129.  Despite the different test that applies, when considering the reasonableness of relocation, the Tribunal member continued to consider a real chance of serious harm: see paras.132, 133 and 134.  It appears that the member conflated the two tests.

15. Counsel for the Minister relies upon the comments of the Tribunal member at paras.124 to 125 where the following is said:

    124. The country information before me does not support a claim that wealthy individuals approached by the PA or other political parties seeking financial support face a real chance of suffering serious harm if they refused to provide that support, particularly where those individuals do not support any other political party.  I do not accept that members or supporters of the PA, including political leaders, in other parts of Sri Lanka will be aware of the support the applicant provided to [X] in the 2004 election campaign because, as I found above, that support was relatively low profile given that the applicant did not join the PA and did not hold any form of leadership position within the PA even at a local level in his home area.  Nor do I accept that the applicants will have a particular political profile in other parts of Sri Lanka outside the NWP because of their families support for the PA.

    125. I accept that, as wealthy individuals, there is a chance the applicants may be approached by the PA or other political parties outside the NWP seeking financial support.  However, on the country information before me, I do not accept that there is a real chance the applicants, as wealthy individuals, will be targeted for harm by the PA or other political parties, the Sri Lankan government or security forces or anyone else outside the NWP if they refuse to provide requested financial support or for any other reason.  I do not accept that the applicant will be in any way required to modify the way he has expressed his political opinion in the past, by rejecting requests from the PA for financial and other support, in order to avoid a real chance of the applicants suffering serious harm outside the NWP in Sri Lanka.

16. However, these findings were made in the context of discussion as to whether or not the applicants faced a real risk of suffering serious harm, not in the context of their subjective fear if they were to relocate, nor in the context of a consideration of the reasonableness of relocation based upon risks or difficulties that may not be sufficient to engage the convention grounds.  It appears that the Tribunal member has continued to adopt the convention test throughout it.  Read as a whole, I am not persuaded that the Tribunal member appropriately distinguished between the two tests that were required in order to properly consider the reasonableness of relocation in the context of this unusual and difficult case. 

17. Considering the matter as a whole, I am ultimately persuaded that, in this case, the Tribunal has fallen into jurisdictional error and that it is appropriate to grant relief.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  31 January 2018