BFK15 v Minister for Immigration
[2017] FCCA 1933
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFK15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1933 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal’s decision irrational – whether Tribunal failed to apply the “real chance” test – whether the Tribunal made findings without evidence – whether the Tribunal afforded the applicant a fair hearing – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(c), 425 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| Applicant: | BFK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1820 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 July 2016 |
| Date of Last Submission: | 21 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Stephen Hodges Solicitors |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1820 of 2015
| BFK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).[1]
[1] After I reserved my judgment, I made an order in chambers substituting the Administrative Appeals Tribunal for the Refugee Review Tribunal as the second respondent.
Claims made in application for Protection
In a statement that formed part of his application for a Protection visa (Statement),[2] the applicant, who is a citizen of Sri Lanka, claimed that he fled Sri Lanka on 9 July 2012 because he feared he would be harmed because he is a Tamil, and because he would be imputed with holding a political opinion favourable to the Liberation Tigers of Tamil Eelam (LTTE). The applicant also claimed he was a Roman Catholic.
[2] CB45
The applicant claimed that in June 2012 his paternal cousin was stopped on his way to town and severely beaten. While visiting his cousin in hospital, four men came to the hospital to see the applicant’s cousin. Speaking Sinhalese, the men told the applicant to leave the room. After waiting half an hour, the applicant returned to the room and his cousin told the applicant the four men were the persons who had beaten him. The applicant’s cousin did not explain why the men had beaten him. The following day the applicant found out the four men had been to his house looking for him. The men took the applicant’s father to a camp for interrogation about the applicant’s whereabouts. After completing their interrogation, the applicant’s father was told the applicant had to present himself at the camp.
While the applicant was at his cousin’s home, he received a telephone call from his father who warned the applicant not to return home. The applicant did not return home, and he did not even go to work. After five days he returned home and stayed there for two days. The applicant then heard “the men” had been to the shop where the applicant worked and made enquiries of the applicant. The applicant’s manager told the applicant that after the men asked about the applicant, they waited outside the shop for two to three hours to see if the applicant would come to the shop. After ten to fifteen days the applicant’s cousin was discharged from hospital. The applicant and his cousin then fled Sri Lanka.
After the applicant’s departure, the same men made further enquiries about his whereabouts four or five times. Further, approximately five weeks before the applicant made his Statement, the applicant’s father informed the applicant that the applicant’s family house was burnt down, and that his family are now living in Colombo.
Claims before the Tribunal
Before the Tribunal the applicant was asked why he did not wish to return to Sri Lanka. He said there are “religious and ethnic related problems”. The applicant said he had problems with the CID (Criminal Investigation Department) who are looking for him, and that the CID went to his house and work, took his parents and tortured them.[3] The applicant said neither he nor any member of his family had any association with the LTTE. The applicant said, however, that one of his cousins who “was with the family for some time” was arrested by the police when the applicant was very young. The applicant said his cousin had been arrested on suspicion of being associated with the LTTE. The applicant said he was aware of this because “[t]hey put it in the news when we saw the news we were able to see him, there were many people with him”.[4] The applicant did not know for how long his cousin had been detained, but perhaps it was for over six months. The applicant also did not know where his cousin had been detained, but he thought he had been detained on the “fourth floor”. Although the applicant did not know more about the “fourth floor”, he said he knew people were ill-treated there by Sri Lankan authorities.[5]
[3] CB129, [17]. This accurately reflects what is recorded in the transcript of the hearing before the Tribunal (T3.9). The transcript (which I will simply identify as “T”) is annexed to the affidavit of F Rodrigo
[4] CB129, [22]; T9.6
[5] CB129-130, [22]; T9.7-10..4
Towards the end of the hearing the Tribunal informed the applicant there was country information that indicated, among other things, that it is mostly people with a particular profile with the LTTE who may be the target of Sri Lankan authorities. In response the applicant said that, before he was born, “they took my father they suspected they shot him and he was injured in his leg they beat him, we have suffered a lot because of this suspicion”.[6]
[6] T11.7; CB131-132, [31]
The Tribunal’s reasons
The Tribunal accepted as plausible that the applicant’s cousin was assaulted and hospitalised in June or July 2012, the applicant visited his cousin in hospital, and the applicant’s father suffered injuries in 1992. The Tribunal, however, was not satisfied that: the applicant’s cousin was assaulted by men believed to be members of the CID; or the applicant’s cousin was imprisoned for any length of time; or any cousin of the applicant was ever suspected of or detained for being associated with the LTTE; or the CID ever went to the applicant’s home or the CID took the applicant’s father for interrogation. Nor was the Tribunal satisfied the other claimed events concerning the applicant’s reasons for departing Sri Lanka occurred.[7]
[7] CB131, [28]
The Tribunal relied on a number of matters for not being so satisfied.
a)The Tribunal was of the view that some aspects of the evidence the applicant gave to the Tribunal about his dealings with the CID appeared to differ from the account the applicant had given in the Statement. The Tribunal noted that the applicant did not mention in the Statement that the manager of the store at which the applicant worked had contacted the applicant the following day after the CID had gone to the store to look for the applicant, and that in the Statement the applicant said his father had been detained for four to five hours whereas before the Tribunal the applicant said his father had been detained for two hours.[8]
b)The applicant did not claim in the Statement that his cousin was associated with the LTTE and that the applicant’s cousin was detained for sixth months on the “fourth floor”. Further, before the delegate the applicant claimed his cousin had been detained in Kallathurai prison which the Tribunal considered to be inconsistent with the applicant’s evidence before the Tribunal that he believed the applicant’s cousin was detained on the “fourth floor”.[9]
c)The Tribunal found the applicant’s evidence to be lacking in significant details about when the events occurred, and there were internal inconsistencies and inconsistencies with other information the applicant provided.[10]
[8] CB129, [20]. That appears to be an error. In the Statement, the applicant claimed that his father was interrogated “for a couple of hours” (CB46, [15]) whereas it was before the Tribunal that the applicant said his father had been detained “[a]bout four to five hours” (T7.4).
[9] CB130, [23]
[10] CB130, [25]
Further, although the Tribunal accepted as plausible the applicant’s evidence that his parents and sister are living in Malaysia where they have sought asylum and the assistance of the United Nations, it was not satisfied that this evidence supports or corroborates the applicant’s “claimed incidents”.[11] The Tribunal also concluded the applicant does not have a profile that would lead Sri Lankan authorities, or any other group, or individual to impute the applicant with any association with the LTTE.[12]
[11] CB130, [26]
[12] CB131, [29]
The Tribunal considered the applicant’s claims based on his being a Tamil, a Christian, an unsuccessful asylum seeker, a returnee from a Western country, and his having left Sri Lanka illegally. The Tribunal referred to country information that suggested that it is only those with a particular profile with the LTTE who may be targeted on their return, and concluded it was satisfied the applicant had no profile that would attract adverse attention.[13] The Tribunal also concluded that:
a)on “the basis of available information”, there is no real chance or a real risk of serious or significant harm occurring to the applicant on his return to Sri Lanka because of his Christian faith;[14]
b)there is no real chance or real risk of serious or significant harm occurring to the applicant on his return to Sri Lanka because he is a young Tamil from Kallathurai;[15]
c)although Tamils have faced a degree of discrimination and ill treatment in Sri Lanka, on the balance of the available information the applicant would not be ill-treated, or be suspected of being associated with the LTTE, only because he is a Tamil, or that he would be unable to have access to justice or employment, or that he would be unable to obtain state protection;[16]
d)there is no real chance the applicant would suffer harm amounting to persecution because he is a Tamil failed asylum seeker from Kallathurai, or a returnee from Australia;[17]
e)although the Tribunal accepted there is a real chance that, on his return to Sri Lanka, the applicant may be arrested and imprisoned for a few days on remand because he departed Sri Lanka illegally, and that conditions in prison may be crowded and poor, and the applicant may be questioned and fined, it was not satisfied that this treatment would give rise to persecution as contemplated by s.91R(1)(c) of the Migration Act 1958 (Cth) (Act).[18]
[13] CB134, [42]
[14] CB134, [43]
[15] CB134, [44]
[16] CB134, [45]
[17] CB138, [54]
[18] CB 141, [66]-[68]
For those reasons, the Tribunal was not satisfied the applicant had a real chance of persecution if he were to return to Sri Lanka.
The Tribunal then considered the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Tribunal repeated its findings in connection with the applicant’s claims based on his fear of persecution, and concluded it was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm as a consequence of the poor prison conditions due to overcrowding during any period he may spend in gaol, or for any other reason.[19]
[19] CB143, [80]
Grounds of application
The application, as filed on 30 June 2015, contained six grounds of application. At the hearing before me there was some uncertainty about the grounds on which the applicant relied. After some discussion, Mr Hodges, who appeared for the applicant, indicated the applicant did not press grounds 1 and 5, and intended to rely on the amended ground 2 as formulated in the applicant’s outline submissions filed on 10 September 2015. I granted the applicant leave to file and serve an amended application which removed grounds 1 and 5 from the current application, and which substituted for ground 2 set out in the application for review filed on 30 June 2015 the ground set out in paragraph 6 of the applicant’s outline submissions filed on 10 September 2015. The applicant has not filed an amended application. I will, however, address in these reasons the grounds that would have appeared in the amended application had the applicant filed an amended application.
There is one final matter to note. At paragraph 30 of the applicant’s outline submissions, under the heading “Ground five”, the first sentence of ground 1 of the application is repeated. Mr Hodges indicated to me that he did not press paragraph 30 of the applicant’s outline of submissions.
Ground 2
Ground 2 is as follows:
The AAT committed jurisdictional error by failing to follow the principles stated by the High Court in Minister for Immigration v SGLB [2004] HCA 21 [sic] at 73 and the Federal Court in Sundaraj [sic] v MIMA [1999] FCA 76
The applicant particularly relies on the following passage from the judgment of Burchett J in Sundararaj v Minister for Immigration and Multicultural Affairs:[20]
The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people . . . should be recognised and recognised by more than lip service.
[20] [1999] FCA 76
It may be assumed that this passage conveys the principle the applicant submits was followed by the Federal Court in Sundararaj, and which the applicant submits the Tribunal in the case before me did not follow. The applicant, however, does not identify the principle he submits arises from SGLB on which he relies. I will assume that the applicant intends to rely on the following passage from the reasons for judgment of Gummow and Hayne JJ in SGLB:[21]
The satisfaction of the criterion that the applicant is a non‑citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.
[21] [2004] HCA 32 at [38]
Thus, as I understand it, ground 2 is directed to the Tribunal’s not accepting the credibility of the applicant’s claims; and the gist of the ground is that the Tribunal acted irrationally by not accepting the credibility of the applicant’s claims.
The applicant attempts to make good his submission by relying on two classes of matters. The first is the principle based on Sundararaj. I understand the applicant to submit that the Tribunal’s assessment of the applicant’s credibility was arrived at by the Tribunal’s picking the applicant’s evidence to pieces to uncover little discrepancies.
It is true that, to some extent, the Tribunal relied on inconsistencies in the applicant’s evidence, although the Tribunal identified only some of these; and it is also true that, by themselves, the discrepancies the Tribunal identified may not reasonably have been capable of supporting a conclusion that the applicant’s claims were not credible. But the Tribunal relied on other matters. In particular, it relied on the applicant’s not having included in his Statement the claim he made before the delegate and the Tribunal that the applicant’s cousin had been detained for six months because of a suspected association with the LTTE. The Tribunal gave the following explanation why it placed weight on the applicant’s not having included this claim in the Statement:[22]
The Tribunal notes that the applicant was represented by a registered migration agent who had assisted him in the preparation of his application when it is reasonable to expect that significant claims forming the most fundamental aspects of the applicant’s case be clearly articulated. The Tribunal is concerned that the applicant at the primary stage did not make significant claims such as his cousin’s claimed association with the LTTE and the applicant’s father being taken on enquiries on many occasions. The Tribunal considers those claims to be fundamental and significant claims and the applicant’s explanations about the reasons for their lack of inclusion are not convincing or persuasive.
[22] CB130, [25]
The reasoning on which the Tribunal relied for not accepting the credibility of the applicant’s claims cannot reasonably be characterised as a picking to pieces of the applicant’s evidence to uncover little discrepancies. It relied to a substantial extent on the applicant’s not having raised in the Statement a claim he first raised before the delegate, namely, the applicant’s cousin having been detained for six months for a suspected association with the LTTE. It was reasonably open to the Tribunal to conclude, as it did, that this claim was a serious claim, and also for finding that, had it been true, the applicant ought reasonably to have raised it when he applied for a Protection visa.
The second class of matters on which the applicant relies are the eighteen particulars appended to the amended ground 2. The particulars include, for example, claims that the Tribunal failed to consider its own direction that “when an applicant is being assisted with the preparation of the protection visa application, there may be time pressures and other factors that could impact on the comprehensiveness of the claims”;[23] the Tribunal “failed in the task of clarifying inconsistencies and finding explanations for them”;[24] the Tribunal failed to explore reasons where the applicant’s father was shot;[25] and the Tribunal failed to make any finding on the allegation that the house of the applicant’s parents had been burned down.[26]
[23] Paragraph (v) of the Particulars to Ground 2
[24] Paragraph (vii) of the Particulars to Ground 2
[25] Paragraph (ix) of the Particulars to Ground 2
[26] Paragraph (xvii) of the Particulars to Ground 2
The difficulty with this attempt to establish irrationality by appealing to the matters stated in the particulars to amended ground 2 is that the applicant does not engage with the principle or principles that must be considered and applied when it is claimed a decision of the Tribunal is irrational. A convenient starting point is the following passage from the judgment of the Full Federal Court in ARG15 v Minister for Immigration and Border Protection:[27]
[F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” . . . Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error . . . .
[27] [2016] FCAFC 174 at [47] (Griffiths, Perry, and Bromwich JJ) (references omitted)
This passage, however, should be read subject to what justices of the High Court have said about irrationality as a ground for establishing jurisdictional error. Relevant is the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS where their Honours said that, in the context of a decision made by the Tribunal, ““illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence”.[28] This passage suggests that it is the decision itself that must be irrational, and not a mere finding of fact made along the way to the final decision. That suggestion is supported by their Honours’ observation that “[n]ot every lapse in logic will give rise to jurisdictional error”.[29] Also relevant is the observations Gummow A-CJ and Kiefel J who said that the “ascertainment of the relevant jurisdictional error [for irrationality], if there be one, must fix upon the treatment of the requirement mandated by s 65 of the Act that the decision maker be “satisfied” that there is ““satisfied”” the criteria for the granting of a visa.[30] This passage suggests that the illogicality ground of review applies to jurisdictional facts. In the context of a Tribunal’s review of a decision by a delegate of the Minister not to grant a Protection visa, the relevant jurisdictional fact is the Tribunal’s “satisfaction” that an applicant satisfies or does not satisfy the criteria for the granting of a Protection visa.
[28] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]
[29] [2010] HCA 16; (2010) 240 CLR 611 at [130]
[30] (2010) 240 CLR 611 at [37]
The relevant question, therefore, is whether the Tribunal’s decision affirming the delegate’s decision, or at least the Tribunal’s conclusion it was not satisfied that the applicant’s claims were credible, “is one at which no rational or logical decision maker could arrive on the same evidence”, or whether the Tribunal’s decision or non-satisfaction is one that no reasonable mind could have arrived at. In my opinion, these questions are to be answered in the negative. As I have already noted, the Tribunal relied on what it considered were inconsistencies in the applicant’s evidence, on a lack of detail in aspects of the applicant’s claims, and on the applicant’s not having raised in his application for a Protection visa a claim he first raised before the delegate. It was reasonably open to the Tribunal to rely on these matters to conclude it was not satisfied the applicant’s claims were credible.
Ground 2, therefore, fails.
Ground 3
Ground 3 is as follows (particulars omitted):
The AAT erred in not applying the real chance test described by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 which was endorsed in more recent context in Minister for Immigration and Border Protection v WZAPN and WZARV v Minister for Immigration and Border Protection [2015] HCA 22 (17 June 2015)
The applicant relies on two classes of matters. The first is the Tribunal’s treatment of the evidence which, according to the Tribunal, the applicant gave that his parents and sister are living in Malaysia and have sought asylum and assistance from the United Nations.[31] Paragraph (i) of the particulars to ground 3 claims the Tribunal failed to consider the possibility that the applicant’s parents were seeking protection “on the very same grounds that the applicant is”. This part of the applicant’s case particularly relies on the following passage from the Tribunal’s reasons for decision:[32]
Whilst the Tribunal accepts as plausible that is the case, on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that this supports or corroborates the applicant’s claimed incidents. There are many reasons for the family to be living in Malaysia, and for seeking asylum and assistance from the UN.
[31] CB130, [26]
[32] CB130, [26]
The second class of matters on which the applicant relies is the applicant’s claim that the Tribunal failed to accept the possibility there was a real chance “of the following history”, namely, that the applicant’s father was detained and shot in 1992 at a LTTE stronghold; the reasons for the detention and ill treatment in 1992 were actual or perceived links to the LTTE; the applicant’s cousin, who had lived in the same house as the applicant, was detained and ill-treated when the applicant was perhaps seven to eight years old; the reason for the detention and ill treatment of the applicant’s cousin was actual or perceived links with the LTTE or actual or perceived links between the applicant’s father in whose house the cousin had lived and the LTTE; about the time of the applicant’s father’s detention in 1992 the applicant’s father and cousin were planning to escape to Italy; the CID later assaulted the applicant’s cousin; the applicant encountered the CID men when he went to visit the cousin in hospital; the CID men came to the applicant’s home and place of employment; the applicant’s home was burned down; and the applicant’s father, mother and sister applied for asylum “on the basis of the above”.[33]
[33] Applicant’s Outline of Submissions, [28](ii)
Principles
The “real chance test” to which the applicant refers is what the High Court has held to be the required degree of probability of future harm to a person of which a decision maker must be satisfied before it can conclude that the person has a “well-founded fear of being persecuted”, as that expression is used in Art.1A(2) of the Refugees Convention.[34] The required degree of probability was identified in two decisions of the High Court. The first is Chan Yee Kin v Minister for Immigration and Ethnic Affairs where Mason CJ said:[35]
But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia . . . . If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[34] Being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees
[35] (1989) 169 CLR 379 at page 389. See also Toohey J at page 407 where his Honour said that the real chance test “gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”. See also McHugh J at page 429 where his Honour said: “As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.”
This passage must be read subject to what the High Court said in Minister for Immigration and Ethnic Affairs v Guo Wei Rong:[36]
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error. . . . Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.
[36] (1997) 191 CLR 559 at page 572-573
Where the Tribunal has determined it is not satisfied that claimed past events occurred or did not occur, it is open to the Tribunal to assess the probability of future harm on the basis or in part on the basis of its not being satisfied the events occurred or did not occur. That implies that it is open to the Tribunal to consider evidence that is relevant to whether a claimed past event occurred or did not occur for the purpose of determining whether it is satisfied the past event occurred or did not occur; and if the Tribunal is not satisfied the event occurred or did not occur, the Tribunal need not have regard to that evidence for the purpose of assessing the probability of the applicant’s having a well-founded fear of being persecuted. Where, on the other hand, the Tribunal is uncertain on the basis of the evidence that is before it about whether claimed past events occurred or did not occur, it may be appropriate for the Tribunal to incorporate into its assessment of the probability of future harm its assessment of the probability of the claimed past event’s having occurred or not having occurred. The circumstances in which the Tribunal may be required to do so were considered by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam.[37]
[37] (1999) 93 FCR 220
In Rajalingam Sackville J (with whose reasons North J agreed) stated the following principles:[38]
[38] This part of my reasons substantially reproduces what I said in SZTFI & Anor v Minister for Immigration & Anor [2014] FCCA 740 at [25] and [26]
a)There are circumstances in which the Tribunal “must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur”. The Tribunal “must not foreclose reasonable speculation about the chances of the hypothetical future event occurring”.[39]
b)The Tribunal “performs its fact-finding task as an administrative decision-maker”, which means it cannot simply apply the civil standard of proof to all fact-finding; that is particularly so because the Tribunal “must frequently make its assessment on the basis of fragmented, incomplete and confused information” and “that it has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator”.[40]
c)Given (b), “it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence”. When, however, the Tribunal:[41]
is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important in the applicant’s case . . . the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
d)The question whether in any given case the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to its own reasons:[42]
If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. . . . . Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[39] (1999) 93 FCR 220 at 239, [60]
[40] (1999) 93 FCR 220 at 239, [61]
[41] (1999) 93 FCR 220 at 239, [62] (emphasis added)
[42] (1999) 93 FCR 220 at 239, [62]
These principles indicate that the Tribunal may be required to incorporate into its assessment of future risk of harm its assessment of the probability of past events having occurred or not occurred only if the Tribunal is uncertain about whether the claimed past events occurred or did not occur.
Evidence of family being in Malaysia
The relevance the Tribunal attached to the applicant’s evidence that his parents (and, according to the Tribunal, the applicant’s sister) claimed asylum in Malaysia and sought assistance from the United Nations is that it potentially corroborated the applicant’s claims. Although the Tribunal was prepared to accept that the applicant’s parents and sister had sought asylum in Malaysia, it was not satisfied that that fact corroborated the applicant’s claims. It was not satisfied because, among other things, the Tribunal was of the view there were potentially a number of reasons why the applicant’s family may have sought asylum in Malaysia. Although not expressly stated, the Tribunal may reasonably be taken to have meant by this observation that the applicant’s family may have claimed asylum for reasons that are not connected with the applicant’s claims.
It was reasonably open to the Tribunal not to accept that the applicant’s family’s having claimed asylum in Malaysia corroborated the applicant’s claims for protection. Further, it was reasonably open to the Tribunal to consider the applicant’s evidence that his parents and sister applied for asylum in Malaysia to be potentially relevant only for the purpose of corroborating the applicant’s claim for protection. In my opinion, it was not reasonably open to the Tribunal to consider that that evidence was relevant for any other purpose. In particular, it was not reasonably open for the Tribunal to consider the evidence was relevant to assessing the probability of the applicant’s suffering harm if he returns to Sri Lanka.
Failure to accept real chance of “the following history”
The decisive difficulty with the applicant’s claim that the Tribunal failed to apply the “real chance” test because the Tribunal failed to consider the possibility there was a real chance “of the following history” having occurred, is that the Tribunal made findings that are inconsistent with the asserted elements of “the following history”. In short, the Tribunal was not satisfied that any of the events on which the applicant relied had occurred. As I noted above, the Tribunal did not accept the applicant’s cousin was assaulted by men believed to be members of the CID; or the applicant’s cousin was imprisoned for any length of time; or any cousin of the applicant was ever suspected of or detained for being associated with the LTTE; or the CID ever went to the applicant’s home or the CID took the applicant’s father for interrogation. Nor was the Tribunal satisfied the other claimed events concerning the applicant’s reasons for departing Sri Lanka occurred.[43] It is apparent from the Tribunal’s reasons for decision that it had no “no real doubt” that the “claimed events had not occurred”. For that reason, therefore, “there is no warrant for holding that [the Tribunal] should have considered the possibility that its findings were wrong” or, which I take to be the same thing, for assessing the possibility that there was a real chance of “the following history” having occurred.
[43] CB131, [28]
Ground 3, therefore, also fails.
Ground 4
Ground 4 is as follows (omitting particulars):
The AAT erred in that it made findings without evidence to support them, or, alternatively, without giving reasons.
This ground is directed to two matters. One is the Tribunal’s finding there is no real chance the applicant faces any harm amounting to persecution or a real risk of significant harm occurring to the applicant because of his Christian faith. The applicant submits this finding is based on no evidence.
This part of the applicant’s claim does not succeed. As the Tribunal itself noted, the applicant did not claim he suffered any specific harm because he is a Christian. There was, therefore, no claim before the Tribunal based on the applicant’s being a Christian.
The second matter to which this ground is directed is the Tribunal’s having accepted some aspects of the applicant’s evidence but rejecting others. The applicant submits the Tribunal gave no reasons for accepting some aspects of the applicant’s evidence but rejecting others, and that this demonstrates the Tribunal’s treatment of the evidence “is rather haphazard and discretionary”. The applicant particularly refers to the Tribunal’s accepting the applicant’s evidence that the applicant’s cousin had been assaulted, but not accepting that the assault had occurred by men “believed to be members of the CID”. The applicant submits that “[s]trong and cogent reasons are needed to accept a claim by the applicant that his cousin was assaulted and hospitalised but reject the additional detail that the . . . perpetrators were “believed to be members of the CID””.
This ground suggests no jurisdictional error by the Tribunal. There is no principle of law that requires the Tribunal to give “strong and cogent reasons” for accepting some but rejecting other aspects of an applicant’s evidence. The Tribunal gave reasons why it did not accept the critical aspects of the applicant’s evidence; and those reasons were ones on which it was reasonably open to the Tribunal to rely.
Ground 4, therefore, also fails.
Ground 6
Ground 6 claims the Tribunal failed to accord procedural fairness to the applicant. The particulars to that ground rely on the applicant’s not having a representative at the hearing, the applicant’s young age (he was 18 years old at the time of his entry interview), and the applicant’s apparent lack of education, sophistication or knowledge of refugee policy or of the Refugees Convention. It is further claimed that, for these reasons, the Tribunal “had an obligation to elicit relevant facts which might benefit the applicant”.
At the hearing before me, Mr Hodges relied on additional matters. Mr Hodges referred to the applicant informing the Tribunal that he did not know whether his representative was coming, and Mr Hodges noted the Tribunal did not express any misgivings about the hearing continuing in the absence of a representative. Mr Hodges also relied on a question the Tribunal asked of the applicant. Mr Hodges submitted the question was unfair because it was in truth two questions, and because one of the questions was premised on an incorrect fact. The following is the question Mr Hodges submits was unfair (emphasis added):[44]
What you’re telling me at this moment is slightly different to what you have claimed in your statement, and I will take you through that, there is no mention of the claim that the manager told you the following day that the CID had gone to work looking for you, also in the statement you mentioned your father was interrogated for a couple of hour [sic] but what you have told me is four or five hours.
[44] T7.5
I do not accept the applicant’s submission that the Tribunal owed the applicant, in the circumstances of this case, “an obligation to elicit relevant facts which might benefit the applicant”. Any duty of fairness the Tribunal owed the applicant at the hearing has as its source, or at least its principal source, s.425 of the Act. The invitation to an applicant to appear before the Tribunal required by that section is “to give evidence and present arguments relating to the issues arising in relation to the decision under review” must be real meaningful; and where an applicant appears before the Tribunal it must be fair.[45]
[45] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [41]
I do not accept that the Tribunal’s question was premised on any incorrect facts. The inconsistency the Tribunal put to the applicant was between his stating to the Tribunal that his manager informed the applicant “the following day” that the CID had gone to the applicant’s work and the applicant’s not having stated in the Statement that his manager had contacted the applicant “the following day”. Even if the question was based on an incorrect factual premise, the applicant had an opportunity to say so. Further, although the applicant was not represented at the hearing, he does not submit he did not understand the questions asked of him or the nature of the process in which he participated. There is no evidence that the applicant’s ability to give evidence and present arguments or otherwise meaningfully participate in the hearing was in any way impaired.
Ground 6, therefore, also fails.
Disposition
I propose to order that the application be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 18 August 2017