BGY15 v Minister for Immigration
[2017] FCCA 110
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGY15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 110 |
| Catchwords: MIGRATION – Protection visa – applicant a Sri Lankan national – Christmas Island arrival in June 2012 – no basis for concluding that Tribunal erred on any ground – application dismissed. |
| Legislation: 1951 Convention Relating to the Status of Refugees, article 1A(2) Immigrants and Emigrants Act (Sri Lanka) Migration Act 1958 (Cth), ss.36(2), 474(2) |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Craig v State of South Australia (1995) 184 CLR 163 Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244 |
| Applicant: | BGY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1541 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 7 September 2016 |
| Date of Last Submission: | 7 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Martin |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Ms J. Lucas |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The applicant is refused leave to amend his amended application filed 28 July 2016.
The amended application filed 28 July 2016 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1541 of 2015
| BGY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 6 July 2015, the applicant sought judicial review of the decision of the Refugee Review Tribunal,
now the Administrative Appeals Tribunal (“the Tribunal”) made on
16 June 2015.[1] The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations with the consequence that the applicant did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal refused to grant the applicant a Protection (Class XA) visa (“the visa”).
[1] Court Book filed 10 February 2016 at pp.287-337.
Synopsis
For the reasons that follow –
a)I refuse the applicant leave to add ground 4 as a ground of his application for judicial review;[2]
b)in respect of each of the three grounds of review,[3] I dismiss them; and
c)I order the applicant to pay the costs of and incidental to this application of the first respondent (“the Minister”).
[2] Exhibit A – proposed ground 4.
[3] Amended application filed 28 July 2016 at p.3.
Short procedural narrative
By his amended application,[4] the applicant asserted that the Tribunal fell into jurisdictional error on three grounds as follows –
1. The Tribunal failed to consider whether, on the basis of the applicant’s past experiences, he would face persecution were he to return to Sri Lanka to work as a fisherman;
2. The Tribunal asked itself the wrong question when considering whether the applicant had a well-founded fear of persecution
3. The Tribunal failed to consider properly whether the applicant met the complementary protection criterion on the basis of the harm that he claimed to have suffered[5]
[4] Amended application filed 28 July 2016.
[5] Amended application filed 28 July 2016 at p.3.
The amended application was filed pursuant to leave granted by Registrar Burns on 11 November 2015.
By way of amended response,[6] the Minister contended that the Tribunal’s decision was not affected by jurisdictional error and, being a privative clause decision under s.474(2) of the Act, the Tribunal’s decision was final and conclusive and it could not be challenged nor could it be the subject of the issue of constitutional writs. The Tribunal entered a submitting appearance.[7]
[6] Amended response to application filed 4 July 2016.
[7] Notice of appearance filed 17 July 2015.
On the day of the hearing before me, Ms Martin of counsel for the applicant announced that the applicant wished to rely on an additional ground of review. The proposed ground four was in the following
terms –
The Tribunal
(a) constructively failed to exercise its jurisdiction; and/or
(b) made a critical finding without evidence:
when it found that the 2010, 2011 and 2012 incidents described by the applicant were “as a result of the war” (and so, the applicant would not experience any harm were he to return to
Sri Lanka) when the Tribunal had before it country information that showed that the war had ended in Sri Lanka in 2009.[8]
[8] Exhibit A – proposed ground 4.
When explaining the late introduction of the proposed ground 4,
Ms Martin said the ground was conceived over the weekend prior to the hearing on Wednesday 7 September 2016. That was said to be the explanation for the delay in bringing forward ground 4. In opposing the application for the inclusion of ground 4, on behalf the Minister
Ms Lucas relied on the decision of the Full Court of the Federal Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs.[9] Ms Lucas also relied on the decision of his Honour
Judge Smith of this Court in BUY15 v Minister for Immigration and Border Protection[10] where his Honour refused an amendment on account of its lateness, lack of explanation for the delay in raising it and lack of merit.
[9] [2004] FCAFC 158.
[10] [2016] FCCA 1736.
Here, there was no doubt the applicant raised ground 4 late
(the weekend prior to the Wednesday hearing) and no sensible explanation was offered for the lateness in raising the ground. For the reasons set out below, in my view the proposed ground 4 is bereft of merit. No point would be advanced in granting leave to include the proposed ground 4. Nevertheless, in the passages below I have explained why it was without merit.
Short factual narrative
The applicant, a citizen of Sri Lanka born on 16 February 1989, arrived on Christmas Island on 20 June 2012. On 15 November 2012 he applied for the visa. On 18 October 2013 a delegate appointed by the Minister refused to grant the visa.[11] On 22 November 2013,
the applicant applied to the Tribunal for the review of the delegate’s decision.[12] The Tribunal invited the applicant to appear before it on
12 March 2015,[13] which invitation the applicant took up, and gave evidence then presented arguments with the assistance of a migration agent and Tamil interpreter. On 16 June 2015, the Tribunal affirmed the delegate’s decision not to grant the visa.
[11] Court Book filed 10 February 2016 at pp.129-149.
[12] Court Book filed 10 February 2016 at pp.152-158.
[13] Court Book filed 10 February 2016 at pp.227-228.
In essence, the applicant asserted that he claimed fear by reason of his Tamil race and by reason of his imputed anti-government political opinions as well as his imputed opinions in favour of the Liberation Tigers of Tamil Eelam (“LTTE”). He said he also claimed fear by reason of his possession of fraudulent identification documents,
his illegal departure to Australia and his application for asylum in Australia.
The applicant claimed that his perceived association with the LTTE arose from his origins from the northern province of Sri Lanka, which made him the target of the Sri Lankan Army (“SLA”), Sri Lankan Navy (“SLN”) and the police. He claimed that he was arrested in 2006 during a random police check when a policeman noticed that an ID card stated that he was born in Alambil. The applicant contended that there were frequent roundups in the village by the SLA and SLN.
He said that in 2010, the applicant and his father were loading a shark onto a boat when the shark bit his father. He said the SLN signalled for them to come to the navy post at a time when the applicant was rushing his father back to shore for medical assistance, but the applicant did not respond. The applicant said that when the SLN asked him why he had not responded, his mother pushed them and the SLN put a gun to his head. He said that in around 2011, SLN officials told him he could only fish after 5.00 a.m. instead of fishing between the hours of
2.00 a.m. and 3.00 a.m. When the applicant queued at 3.00 a.m., he said the SLN fired warning shots in the sky. The applicant said that in May 2012, he was fishing with his father at around 9.00 a.m. and they cast their nets near the SLN camp. He said that they were called to shore and they were beaten because they did not respond quickly enough and were warned that if they repeated the incident, they would be shot dead. The applicant said they were interrogated for an hour.
He said their boat subsequently capsized as they tried to put it out to sea.[14]
[14] First respondent’s submissions filed 25 August 2016 at [6].
The applicant also claimed to fear harm arising from the fact that he had fraudulent documents stating that he was born in Udappu when he was born in Alambil and that the authorities would find out that he possessed two identifications and would question him as to why he had obtained the documents. He said that this would lead them to suspect that he was in the LTTE.[15]
[15] First respondent’s submissions filed 25 August 2016 at [7].
Before the Tribunal
Over 117 paragraphs of reasons the Tribunal addressed the claims advanced by the applicant.
The Tribunal made a collection of findings, many of which bore upon the grounds of review urged by the applicant. It is as well to set them out.
The Tribunal recorded the consistency in the account given by the applicant of incidents between him and the SLN during the years 2010, 2011 and 2012. The Tribunal also recorded its acceptance of an incident when the applicant’s father’s boat was damaged after being required to put to sea in windy conditions. The Tribunal accepted that the incident there described had in fact occurred. The Tribunal also stated that it was satisfied that those incidents were the result of war. The Tribunal stated it was satisfied that no repercussions arose from those incidents prior to the applicant’s departure from Sri Lanka.
The Tribunal further stated that it was not satisfied that a real chance existed that the applicant would face any harm on the basis of past experiences in Sri Lanka. The Tribunal stated it was not satisfied the applicant had a well-founded fear of persecution. The Tribunal was not satisfied that the applicant was of any adverse interest to the
Sri Lankan authorities by the time he left Sri Lanka.
In paragraph 54 of its reasons, the Tribunal recorded the applicant’s stated main concern, namely, fraudulent documents. Details of the applicant’s documentation that was, or was said to have been, fraudulent were recorded between paragraphs 30 to 41 of the Tribunal’s reasons and elsewhere such as in paragraphs 44 to 52 and between paragraphs 54 to 61. The applicant stated that no authorities were aware he had fraudulent documents but he said that if he was sent back to Sri Lanka, the authorities would check his passport and identification details and fraudulent documents would lead to his being suspected of belonging to the LTTE.
The Tribunal found that the Sri Lankan authorities would not suspect the applicant of LTTE affiliations merely on the basis claimed.
The Tribunal was not satisfied that the applicant would be associated with LTTE on the basis of his Tamil race or that he was a Tamil from the northern province of Sri Lanka, nor did the Tribunal accept that the applicant would face a real chance of serious harm on the basis of his failed asylum seeker status or his illegal departure from Sri Lanka or that any consequence would flow from that status.
So far as the complementary protection criteria were concerned,
the Tribunal was not satisfied there was a real risk the applicant would suffer significant harm if he were to be questioned upon returning to Sri Lanka. The Tribunal was also not satisfied that the applicant would face a real risk of significant harm if the applicant spent a relatively short period on remand following a charge under the Immigrants and Emigrants Act (Sri Lanka) or if a fine were imposed upon him.
In the result, having considered the applicant’s claims individually and cumulatively, the Tribunal found that there was no substantial ground for believing that, as a necessary and foreseeable consequences of the applicant being removed from Australia to Sri Lanka, there was a real chance that the applicant would suffer serious harm or a real risk that the applicant would suffer significant harm.[16]
[16] First respondent’s submissions filed 25 August 2016 at [13].
With that introduction, let me now turn to each ground of review.
Ground 1
Under this ground, Ms Martin contended that the Tribunal was required to consider whether, if the applicant were to return to Sri Lanka,
his past experiences indicated that he would experience serious harm or face persecution. Ms Martin contended that the Tribunal, having accepted the occurrence of events in 2010, 2011 and 2012, should have but failed to consider whether if the applicant were to return to
Sri Lanka –
a)he could reasonably be expected to work in a capacity other than as a fisherman; and
b)he would be required to live discreetly so as to avoid persecution by reason of the fact that he was unable to work as a fisherman on account of the fact that he was too fearful.
[17] (2003) 216 CLR 473.
The applicant relied on the High Court’s decision in
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[17](“Appellant S395/2002”) in submitting that the Tribunal failed to give the material before it “active intellectual” consideration and that it was required to “engage in a proper review of the applicant’s claims”,[18] additionally citing Htun v Minister for Immigration and Border Protection,[19] Norvill & Anor v Chapman & Ors,[20] and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs.[21]
[18] Contentions of fact and law of the applicant filed 28 July 2016 at [11].
[19] (2001) 194 ALR 244.
[20] (1995) 57 FCR 451.
[21] (2005) 147 FCR 51.
On behalf of the Minister, Ms Lucas submitted that it was unnecessary for the Tribunal to make a finding on the matters asserted by the applicant because the factual basis for the applicant’s claim to fear harm in the future had been found by the Tribunal to no longer exist.
In support, Ms Lucas relied on the decision of the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[22]
[22] [2003] FCAFC 184.
Consideration of ground 1
In my judgment, the Minister was correct in his contentions concerning ground 1.
On the facts of this case, the war in Sri Lanka had come to an end by the time the Tribunal dealt with this application. Following the cessation of war, no repercussions had arisen from those events.
Not only did the Tribunal find that the cause of the applicant’s claim to past harm no longer existed, but the Tribunal found that the applicant had returned from India in 2012 with no difficulties. Further,
at paragraph 22 and 37 of its reasons, the Tribunal found that the applicant had stated he was no longer concerned about returning to
Sri Lanka. In my view, it was open to the Tribunal to find that the applicant would not suffer serious harm upon returning to Sri Lanka.
I reject the applicant’s contention that the applicant “could be at risk of harm if he were [to return to Sri Lanka] to be a fisherman”.[23]
The events in Sri Lanka of 2010, 2011 and 2012 had passed after the cessation of the war. In her address to me Ms Martin stated that the war officially came to an end in May 2009.
[23] Contentions of fact and law of the applicant filed 28 July 2016 at [10].
The applicant premised his submissions on the predictive exercise the Tribunal is required to undertake, as prescribed by High Court authorities such as Chan Yee Kin v Minister for Immigration and Ethnic Affairs[24] (“Chan Yee Kin”), Minister for Immigration and Ethnic Affairs v GuoWei Rong[25] (“Guo”) and in Abebe v Commonwealth of Australia.[26] The concept is best encapsulated by the judgment of the plurality in Guo. It was in the following terms –
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future,
but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.
In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[27][24] (1989) 169 CLR 379, 391.
[25] (1997) 191 CLR 559, 577.
[26] (1999) 197 CLR 510 at [82].
[27] (1997) 191 CLR 559, 574-575.
By 2015, when the Tribunal heard the applicant’s application in this case, the war in Sri Lanka had been over for six years or thereabouts. The events on which the applicant relied as grounding his fear had ceased. It seemed to me that the Tribunal correctly applied the substance of the reasoning in Guo by engaging in the predictive exercise there under consideration. It was open to the Tribunal to conclude that the war had ended and so the episodes on which the applicant relied, themselves the result of war, did not provide a basis for the applicant’s contention that he would face harm by reason of past experiences.
In any event, the applicant’s own evidence was to the effect that he was not concerned about returning to Sri Lanka in 2012, as was recorded in paragraphs 22 and 54 of the Tribunal’s reasons. That evidence tended to dispel the applicant’s assertion that he feared returning to Sri Lanka.
But the applicant’s ground 1 had two parts. The above matters only addressed the first part of ground 1.
The second part of the applicant’s ground 1 related to his assertion that if he returned to Sri Lanka he would not resume as a fisherman.
Correctly, in my view, Ms Lucas relied on the behaviour modification concepts set out by the High Court in Appellant S395/2002. There,
it was held that in circumstances where the applicant is able to avoid persecution by acting discreetly or by otherwise modifying his or her behaviour, the Tribunal must consider why the applicant would act in that modified manner and the Tribunal must also consider what would happen to the applicant if he or she did not modify his or her behaviour. If the reason for the modified behaviour is the applicant’s fear
of persecution, and that fear is well-founded, then the applicant
might assume refugee status in accordance with article 1A(2) of the
1951 Convention Relating to the Status of Refugees
(“the Convention”).
Here, the alleged behaviour modification was premised on the events that had occurred during the civil war. As recorded above, the civil war ended in 2009.
The Tribunal found in paragraph 73 of its reasons that it did not accept that the applicant will be at risk of harm on return to Sri Lanka on account of his ethnicity. That finding rendered it unnecessary for the Tribunal to consider what might happen if the applicant were to resume working as a fisherman upon his return to Sri Lanka. That finding applied irrespective of the work the applicant pursued on his return to Sri Lanka. Coupled with the concession made by the applicant that he did not have any concerns when he returned to Sri Lanka from India in 2012, it seemed to me that the second part of ground 1 had not been made out.
To my mind, ground 1 failed. I am not persuaded that the Tribunal made a jurisdictional error in respect of the ground asserted.
Ground 2
Nebulous and imprecise as ground 2 was, in Ms Martin’s
written submissions[28] and in her address to me, the point was better elucidated. Under this ground, the applicant contended that –
when considering whether the applicant had experienced serious harm, the Tribunal should not have had regard to the absence of there being any repercussions for the applicant from the events as described by the applicant.[29]
The applicant argued that in relying upon the absence of there being repercussions for the applicant, the Tribunal asked itself a wrong question within the meaning of jurisdictional error as propounded in Craig v State of South Australia.[30]
[28] Contentions of fact and law of the applicant filed 28 July 2016.
[29] Contentions of fact and law of the applicant filed 28 July 2016 at [13].
[30] (1995) 184 CLR 163.
In essence, the applicant took issue with the Tribunal’s finding in paragraph 55 of its reasons that “[t]here were no repercussions from those events”.[31] A fair reading of the Tribunal’s reasons showed that the events canvassed by the phrase “those events” was a reference to events in 2010, 2011 and 2012, being events referred to in paragraphs 23, 24, 25, 26 and 28 of the Tribunal’s reasons. The applicant’s real complaint, as Ms Martin explained, was that the repercussions were not specified.
[31] Court Book filed 10 February 2016 at p.296.
Pausing there, in the applicant’s written submissions the issue to which ground 2 was said to be directed was the “absence of there being repercussions”[32] yet in the applicant’s verbal submissions, the issue was said to be that the so-called repercussions were unspecified.
[32] Contentions of fact and law of the applicant filed 28 July 2016 at [13].
The Minister submitted that ground 2 was without merit. Ms Lucas submitted that the Tribunal accepted the occurrence of the relevant events, yet nothing arose out of them that could have given rise to a well-founded fear into the future. In her written submissions,[33]
Ms Lucas argued that the absence of any incidents having occurred for some time prior to the applicant’s departure from Sri Lanka was relevant to the determination of the existence of a real chance that the applicant would suffer serious harm. That was to be contrasted with the existence of “a remote or far-fetched possibility”.[34]
[33] First respondent’s submissions filed 25 August 2016.
[34] First respondent’s submissions filed 25 August 2016 at [18].
Consideration of ground 2
In my view, the applicant’s contentions concerning ground 2 failed. Even though the Tribunal accepted the occurrence of the events relied on by the applicant in 2010, 2011 and 2012, the Tribunal found that nothing arose from them to give rise to a well-founded fear into the future. To my mind, such a finding was open. The events were as a result of a civil war that had ended. The fear of persecution alleged by the applicant appeared to me to be “remote” or a “far-fetched possibility” as those expressions were used in Chan Yee Kin.
In my view, the Tribunal made the correct finding in relation to the events of 2010, 2011 and 2012. It also correctly found that the war had ended years prior to those events. I do not agree that the Tribunal asked itself a wrong question about the absence of repercussions.
The existence of or absence of repercussions following the events the applicant described in 2010, 2011 and 2012 were squarely relevant to the existence or otherwise of there being a real chance that the applicant would suffer serious harm. In my view the Tribunal made no error in reaching the conclusion it did.
Ground 2 failed.
Ground 3
Under this ground the applicant asserted that the Tribunal failed to consider whether the applicant met the complementary protection criteria. Specifically, the applicant argued that its statement in paragraph 83 of its reasons was insufficient consideration of the complementary protection claim. Paragraph 83 of the Tribunal’s reasons were in the following terms –
On the basis of the findings set out above that the applicant does not face a real chance of any harm in relation to these claims,
the Tribunal also finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.[35]
[35] Court Book filed 10 February 2016 at p.300.
The applicant argued that the totality of factual matters that went to s.36(2)(aa) considerations were found in paragraph 55 of the Tribunal’s reasons. Paragraph 55 was in the following terms –
The Tribunal is satisfied that the incidents he described were as a result of the war. There were no repercussions from those events in the time before the applicant left Sri Lanka and now three years have passed. The Tribunal is not satisfied that there is a real chance that the applicant will face any harm on the basis of past experiences in Sri Lanka and the Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis if he returns to Sri Lanka now or in the reasonably foreseeable future.[36]
[36] Court Book filed 10 February 2016 at p.296.
The Minister submitted that the Tribunal, having considered the applicant’s claim on a Convention-basis and having determined such a claim adversely to the applicant, found that no claims remained alive as a basis for applying complementary protection criteria.
Consideration of ground 3
It seemed to me that the Minister correctly stated the position.
The complaint that the reasoning in paragraph 83 was not a proper consideration of the complementary protection claim missed the point. Once the factual foundation for the Convention claim was determined adversely to the applicant, it did not automatically follow that the complementary protection claim had to be considered. So much was held in SZSHK v Minister for Immigration and Border Protection.[37] Equally, where factual findings relevant to Convention matters effectively disposed as well of complementary protection matters,
no jurisdictional error is made by the Tribunal when omitting to deal specifically with matters under the rubric of complementary protection. Authority on that point is to be found in SZSHF v Minister for Immigration and Border Protection[38] and in SZSYI v Minister for Immigration and Border Protection.[39] I addressed those cases in SZUQB v Minister for Immigration and Border Protection.[40]
[37] [2013] FCAFC 125 at [37].
[38] [2014] FCA 237.
[39] [2015] FCA 1276.
[40] [2016] FCCA 2180.
In my view, no error was shown in paragraph 83 of the Tribunal’s reasons, especially in reference to the expression “on the basis of the findings set out above”.[41] While it was true that the phrase was used interchangeably in connection with the claim under s.36(2)(a) as well as a claim under s.36(2)(aa) of the Act, once findings of fact were made, those being the same facts relevant to the Convention claim and also to the complementary protection claim, adversely to the applicant, the result for the applicant was equally adverse.
[41] Court Book filed 10 February 2016 at p.300.
Ground 3 failed.
The proposed ground 4
In the passages above, I have set out the terms of the proposed
ground 4.
In essence, the applicant put forward two contentions under that proposed ground –
a)first, the applicant contended that the Tribunal did not identify as it should have the material change in the conditions in Sri Lanka in the aftermath of the war; and
b)second, the applicant argued that the war had ended in 2009 so the Tribunal erred in making the war and its aftermath relevant to events in 2010, 2011 and 2012.
The so-called importance of the point was explained by Ms Martin in the following terms –
So, in my submission, by giving this pivotal importance to a war having ended after the events complained of so that the situation is now so different that the applicant can have no well-founded fear of persecution, that that is a misunderstanding of the country information that was before the tribunal and the way in which the claim was put by the applicant.[42]
[42] Transcript of proceedings, 7 September 2016 at p.25.
The submission was not developed to any particular degree. It seemed to amount to a contention that the Tribunal misunderstood the country information before it. A large volume of country information was put to the Tribunal, including information urged by the applicant’s then migration agent, Fragomen. At all events, I see no error of logic or misconstruction of country information by the Tribunal concluding that the war ended in 2009, that the events described by the applicant occurred over three subsequent years ending in 2012 and, importantly, from 2012 the applicant observed no concerns in travelling to
Sri Lanka from India. One might logically conclude that if the aftermath of war was still alive in 2012 despite the formal cessation of hostilities in 2009, the applicant would have been reluctant (to say the least) to travel to Sri Lanka from India in 2012. However, that was not his evidence. To the contrary. The applicant expressed no concerns about travelling from India to Sri Lanka in 2012.
Ground 4 has no merit. I see no basis for the grant of leave to include it for the simple reason that it would have failed. Leave to rely upon it is refused.
Conclusion
All grounds of review failed.
I dismiss this application, including the application for leave to amend to incorporate the proposed ground 4. The applicant must pay the Minister’s costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 1 February 2017