BHJ15 v Minister for Immigration

[2017] FCCA 2604

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHJ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2604

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Protection (Class XA) visa – whether Tribunal considered integers of applicant’s claims – whether Tribunal obliged to give the applicant notice that it intended to make findings on an integer of the applicant’s claims – whether Tribunal was obliged to make enquiries of applicant of his political beliefs – whether Tribunal applied the correct tests in assessing the applicant’s claims based on the likelihood of his being held in detention if he were to return to his country of nationality – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 91R(1)(c)

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63; (2006) 228 CLR 152

Applicant: BHJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1892 of 2015

Judgment of: Judge Manousaridis

Hearing date: 22 September 2016

Date of Last Submission: 22 September 2016

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Mr A Keevers of

Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1892 of 2015

BHJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka and a Tamil, 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 to the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. The applicant arrived in Australia as an irregular maritime arrival on 20 June 2012 and later applied for a protection visa on 8 November 2012.

2. In a statutory declaration that accompanied his application for a protection visa,[1] the applicant claimed he first left Sri Lanka in 1985 with his family to escape danger Tamils were experiencing, which included their being captured, imprisoned, tortured, and killed by the Sri Lankan Army (SLA). The applicant claimed he and his family went to India. They lived there in a refugee camp, which only contained Tamils, until 1989 when the Indian government told those living in the camp it was safe for them to return to Sri Lanka. The applicant claimed that, after living in Sri Lanka for a while, he returned to India in 1991 because it still remained unsafe for Tamils in Sri Lanka. The applicant and his family stayed in India at a different refugee camp until 1993. At that time the applicant’s parents believed it was safe for them to return to Sri Lanka because the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) reached an agreement.

   [1] CB43-46

3. The applicant further claimed that in January 2011 he was the secretary of the local fishing association. One of the applicant’s duties was to look after buildings owned by the association. The Karuna Group, a group associated with the government, “tried to make” the applicant give the Karuna Group space in one of the buildings owned by the association to use as an office. The Karuna Group did not intend to pay, so the applicant refused to give in to their demands and, in any case, there was no spare space to give the Karuna Group. The Karuna Group would take the association’s fish and not pay, and this continued for 12 months.

4. The applicant ceased being secretary of the fishing association in January 2012. Some members of the Karuna Group, however, would go to the applicant’s house even though he was no longer secretary. These members threatened they would kidnap and kill the applicant if he continued to refuse their demands. The applicant claimed that if he returns to Sri Lanka he will be kidnapped by the Karuna Group and “made to disappear”. The applicant fears the Karuna Group because they are supported by the Sri Lankan government and he will not receive protection from the Sri Lankan authorities. The applicant further claimed he will be harmed because he is a Tamil and because of an implied support of the LTTE, he will be targeted because of his attempts to gain refugee status in Australia, and that if he is returned to Sri Lanka he will be identified as having been to Australia by his “travel document”.

5. Before the delegate the applicant was asked how much fish the Karuna Group took from the fishing cooperative.[2] It appears that this question was asked because the delegate was of the view that the Karuna Group operates a criminal enterprise and carries out extortion against targets from the Tamil dominated population. The applicant claimed before the delegate that the Karuna Group took about five to ten kilograms of fish from each boat, and did not pay anything for the fish. The delegate did not accept the applicant’s evidence because the delegate did not accept the Karuna Group would take so much fish that the applicant or other Tamil fishermen would be deprived of their capacity to subsist. The delegate appeared to accept the applicant was the subject of extortion by the Karuna Group, but found that the amount of fish the Karuna Group extorted was not sufficient to amount to persecution because at no time did the applicant assert he was unable to subsist or was at risk of being unable to subsist.[3]

   [2] CB123

   [3] CB123

6. The applicant made a new claim or set of claims in submissions dated 16 September 2013 the applicant’s representative provided to the Tribunal.[4] The applicant claimed as follows:

   a)The applicant was involved in the Sri Lankan parliamentary elections in 2004 and 2010, and in his local election in 2011. In 2004 his friend, Mr G, was contesting in the parliamentary election for the TNA (Tamil National Alliance), and the applicant helped Mr G with his campaign by being on stage with him, and handing out and posting up notices. The TNA won two seats in the Trincomalee district.

   b)In 2010 Mr G contested for a different party, the All Ceylon Tamil Congress, but the applicant did not support Mr G. In 2010 the applicant’s whole village supported the TNA “so they all got together to help out in a similar fashion” to the applicant’s efforts in 2004. Because of these efforts, the applicant and three others were threatened by people he believed to be the Sri Lankan Criminal Investigation Department (CID). Two men in civilian clothing approached the applicant and the others and told them to stop working for the TNA, and if they did not stop, “they will go missing”.[5] At another time, when travelling in a van, the applicant and the group with which he was travelling were stopped and had their photographs taken and their identification cards taken from them.

   c)In 2011 the applicant supported his class mate, Mr K, in the local elections by posting up notices and going from house to house. As a result of that support, the applicant says he was threatened by a man called Mr KA, who was a member of the Karuna Group.

   [4] CB138 at CB142-143

   [5] CB143

7. At the hearing before the Tribunal the applicant made further claims. First, he claimed that in 2009 he had been arrested because the authorities thought he had done something illegal. He claimed he was interrogated and released, but only after giving money to a Mr M who worked with the army.[6] Second, the applicant claimed that in 2011 he was threatened by a man who belonged to the Karuna Group about his political activities and regularly demanded money from the applicant for alcohol, and the applicant made payments to him two or three times a month. [7] Third, the applicant claimed that a man who helped the applicant campaign in LTTE areas for the TNA was now in the Karuna Group, and this man had rung the applicant in Australia asking for money.[8]

   [6] CB293, [40]

   [7] CB294, [44]

   [8] CB294, [44]

Tribunal’s reasons

1. The Tribunal understood the applicant made claims, or otherwise treated the applicant as having made claims for protection on the ground that he is a Tamil and a Hindu; the applicant was a fisherman and secretary of his local fishing association; the applicant engaged in political activities; the applicant was a member of a particular social group of returned asylum seekers; and the applicant had departed Sri Lanka illegally.

General findings

1. The Tribunal accepted the applicant is from Trincomalee and that he resided in India from 1985 to 1989 and from 1991 to 1993 due to the dangers faced by Tamils at that time. The Tribunal also accepted the applicant worked overseas in Iraq, Singapore, and Malaysia from 2005 to 2010.[9]

   [9] CB291, [34]

Claim based on being a fisherman

1. The Tribunal accepted the applicant worked as a fisherman from 1997 to 2005; that in 2003 he became a secretary and then the treasurer of a particular association (the Association) until he departed Sri Lanka; that at this time Tamil fishermen wanted to sell their fish directly to someone in Colombo rather than through Sinhalese traders to get better prices;[10] the military became involved and threatened the Association that its members should only sell fish to the Sinhalese traders, and that the military beat some committee members, although not the applicant;[11] and the Karuna Group approached the applicant while he was secretary of the Association demanding office space, which the applicant refused, after which the Group threatened the applicant.[12]

   [10] CB292, [35]

   [11] CB292, [36]

   [12] CB292, [37]

2. The Tribunal, however, did not accept the applicant was threatened by members of the Karuna Group after he ceased being secretary of the Association. The applicant gave evidence to the Tribunal that those members knew the applicant had stopped being secretary of the Association. The Tribunal did not consider it plausible or credible that members of the Karuna Group would have threatened the applicant after he ceased being an office holder because the applicant would not have been in a position to grant their wishes in relation to the building.[13] The Tribunal said this finding is supported by evidence the applicant gave to the delegate and to the Tribunal that in 2012 other office holders were threatened but otherwise not harmed.[14] Further, given, as the applicant said, the Association no longer exists, and the applicant resided in his home area in Sri Lanka between January 2012 and June 2012 without being harmed, the Tribunal found the chance that the authorities, the Karuna Group or anyone else will now or in the reasonably foreseeable future have an adverse interest in the applicant is remote.[15]

   [13] CB292-293, [37]

   [14] CB293, [37]

   [15] CB293, [39]

3. The Tribunal did not accept the applicant’s claim that he was arrested in 2009 because the applicant had not made that claim in his application for a Protection visa or before the delegate; and the Tribunal did not accept the reason the applicant gave for not having raised the claim before.[16]

   [16] CB293, [40]

4. The Tribunal accepted the applicant and other fishermen were required to sell their fish to Sinhalese traders and that the Karuna Group would confiscate fish from the applicant. The Tribunal did not accept, however, that this threatened the applicant’s capacity to subsist, or that it constituted serious or significant harm, or would constitute such harm if it occurs in the reasonably foreseeable future. The Tribunal relied on the applicant’s evidence that he was able to fly to Chennai and back for a holiday in 2012 to attend a friend’s wedding, and on the income the applicant, in his application for a Protection visa, claimed he earned through his fishing from January 2010 to June 2012. The Tribunal found the evidence indicated the applicant was able to make a good living working as a fisherman.[17]

   [17] CB293, [41]

5. The Tribunal concluded the applicant does not face a real chance of persecution in the reasonably foreseeable future because of his membership of a particular social group consisting of Tamil fishermen or due to his actual or imputed political opinion relating to his involvement with the Association at the hands of the Karuna Group, the authorities or anyone else; and there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will suffer significant harm for these reasons.[18]

   [18] CB293-294, [42], [43]

Claim based on political activity

1. The Tribunal did not accept the applicant’s claims that he had any political involvement with the TNA.[19] It did not do so because the applicant did not make these claims before the delegate or in the statutory declaration that he provided in support of his application for protection, and the Tribunal did not accept the applicant’s explanation why he did not include these claims earlier than he did; and, at the hearing before the Tribunal, the applicant claimed he was a member of the TNA whereas in the applicant’s representative’s submission of 16 September 2016 it was claimed the applicant helped a friend in his campaign.[20] Based on these findings, the Tribunal did not accept the applicant would involve himself in any political activities with the TNA or anyone else; and that, therefore, it considered as remote the risk or chance of the applicant being of adverse interest to the government, or to the Karuna Group, or to any other paramilitary group or anyone else, or that the applicant will be imputed with an anti-government opinion.[21]

   [19] CB294, [45]

   [20] CB294-295, [45]

   [21] CB295, [47]

Claim based on Tamil ethnicity

1. The Tribunal had earlier in its reasons for decision identified a “Country Report, Sri Lanka” dated 16 February 2015 prepared by the Department of Foreign Affairs and Trade (DFAT Report).[22] That report referred to the security situation in the north and east of Sri Lanka as having greatly improved since the end of the military conflict, and to their being no official laws or policies that discriminate on the basis of ethnicity or language in relation to access to education, employment, or access to housing, although it noted there was a “low-level of discrimination in the implementation of laws and policies” and a “moderate level of discrimination between particularly ethnic groups”.[23] The DFAT Report also referred to the United Nations’ High Commissioner for Refugees (UNHCR) eligibility guidelines released in July 2010 which stated there was “no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country”.[24] The Tribunal concluded that, based on the individual circumstances of the applicant and country information:

   a)the applicant does not face a real chance of persecution because of his Tamil race, or his membership of the particular social group of young males from the north of Sri Lanka, or his actual or imputed political opinion or for any other Convention or non-Convention reason, now or in the reasonably foreseeable future, from the authorities, paramilitary groups, such as the Karuna Group or anyone else;[25] and

   b)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 he will suffer significant harm because of his Tamil race, or his membership of the particular social group of young males from the north of Sri Lanka, or his actual or imputed political opinion.[26]

   [22] CB288, [27]

   [23] CB288, [27]

   [24] CB288, [27]

   [25] CB296, [53]

   [26] CB296, [54]

Claim based on applicant’s being a Hindu

1. Relying on country information and the individual circumstances of the applicant, the Tribunal found there was not a real chance the applicant would face persecution because he is a Hindu, nor were there 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 the applicant will suffer significant harm because he is a Hindu.[27]

   [27] CB296, [56]-[57]

Claims based on being failed asylum seeker

1. The Tribunal accepted that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka, and that this applies to people who have such a profile who return to Sri Lanka from abroad. The Tribunal did not accept, however, that returnees generally are regarded as having links with the LTTE or being opposed to the government only because they have been in Australia or in other western countries.[28] Although the Tribunal accepted the applicant attended a Remembrance Day and that the event was recorded by the Tamil association, it was satisfied, because it was the only such event the applicant attended, there was only a remote chance this would attract an adverse profile from the Sri Lankan authorities or anyone else in Sri Lanka.[29]

   [28] CB297, [60]

   [29] CB297, [61]

2. Further, although the Tribunal accepted the applicant was involved in the Association, and that the military has previously viewed that organisation with suspicion for LTTE links, it did not accept the applicant faces a real chance of being imputed with a political opinion as a supporter of the LTTE now or in the reasonably foreseeable future. The Association has been disbanded, a considerable period of time has passed since the applicant’s involvement with the Association, and the applicant has not claimed that he or any of his family members was involved with the LTTE.[30]

   [30] CB297, [62]

3. The Tribunal, therefore, concluded the applicant did not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker;[31] and there were 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 he will suffer significant harm on this basis.[32]

   [31] CB298, [63]

   [32] CB298, [64]

Claim based on illegal departure from Sri Lanka

1. The Tribunal referred to country information to the effect that all persons who are returnees who have left Sri Lanka by irregular means are dealt with equally regardless of ethnicity;[33] and that such returnees are fined rather than imprisoned.[34] The Tribunal found that, on his return, the applicant faces short term detainment before applying for and obtaining bail and being subjected to a fine as a result of being charged under the Immigrants and Emigrants Act, and referred to country information that shows returnees have been granted bail on personal surety immediately by magistrates.[35] The Tribunal also accepted that prison conditions in Sri Lanka are poor.[36]

   [33] CB298, [65]

   [34] CB298, [66]

   [35] CB298, [67]

   [36] CB298, [67]

2. On the basis of these findings, the Tribunal:

   a)was not satisfied that any problems the applicant may face as a result of questioning, charges, and cramped and uncomfortable and unsanitary conditions in remand, would be aimed at the applicant for any Convention reason, but are factors that apply to the general population, not specifically to Tamils and, for that reason, the applicant’s experiencing questioning, charges, and cramped and uncomfortable and unsanitary conditions in remand would not constitute systematic and discriminatory conduct as required by s.91R(1)(c) of the Migration Act 1958 (Cth) (Act);[37] and

   b)was not satisfied that the applicant’s being detained for a short period in the prison conditions and fined would constitute serious harm.[38]

   [37] CB298-299, [67]

   [38] CB298-299, [67]

1. The Tribunal found that the short period of detention, questioning, or imposition of a fine would not amount to significant harm under s.36(2A) of the Act. The Tribunal noted it considered country information and accepted that prison conditions in Sri Lanka are poor but concluded that, because of the short term nature of the detention, the conditions would not constitute significant harm. Further, the Tribunal was satisfied that the poor prison conditions are due to a lack of resources and the government’s unwillingness to address it, and does not involve intentionally inflicted severe physical or mental pain or suffering that could reasonably be regarded as cruel or inhuman in nature.[39]

   [39] CB299, [68]

2. The Tribunal, therefore, concluded the applicant would not face a real chance of persecution because he left Sri Lanka illegally in the reasonably foreseeable future from the authorities or anyone else; and that there were 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 the applicant will suffer significant harm because he departed Sri Lanka illegally.[40]

   [40] CB299, [69], [70]

Hearing and grounds of application

1. The application contains four grounds of review. The applicant, who is not legally represented, made brief general submissions and brief submissions in relation to two of the four grounds of application which, at my request, were interpreted to the applicant during the hearing. I propose to consider each of the grounds stated in the application and, where appropriate, refer to the submissions the applicant made at the hearing before me.

Ground 1

1. The first ground is:

   The Tribunal committed jurisdictional error when it failed to deal with claim that being in the position of secretary and following the resignation there was belief that he still had control.

   Particulars

   The Tribunal accepted that the Applicant was of [the Association] and accepted that the Karuna Group approached the applicant to the [Association] property (RRT decision para 37).

   The Tribunal failed to deal with the claim that the Applicant with strong view that the demands on the access to the Association’s property.

   Despite not holding the formal position as Secretary the Applicant was at risk owing to former resistance and his potential ability to influence outcome.

   The Tribunal fell into error when it failed to deal with this claim.

2. The applicant made no submissions in relation to this ground.

3. Ground 1 appears to make two claims. One is that the Tribunal failed to deal with the claim that it was believed, presumably by the Karuna Group, that the applicant occupied the position of secretary of the Association even though he had resigned from that position. The second claim is that the Tribunal failed to consider a claim that the applicant was at risk even after he resigned from his position of secretary of the Association because, while secretary, the applicant had resisted the demands of the Karuna Group.

4. I do not accept these claims. As I have noted in paragraph 12 of these reasons, the Tribunal considered, but did not accept, the applicant’s claim that members of the Karuna Group threatened the applicant after he ceased being a secretary of the Association. The Tribunal did so because the applicant gave evidence to the Tribunal that the members of the Karuna Group whom the applicant claimed had threatened him knew the applicant had stopped being secretary, and the Tribunal did not consider it plausible or credible that members of the Karuna Group would have threatened the applicant after he ceased being an office holder because the applicant would not have been in a position to meet the demands of the Karuna Group. As I have noted in paragraphs 12-15 of these reasons, the Tribunal considered the applicant’s claims to fear harm at the hands of the Karuna Group and other persons because of the applicant’s involvement with the Association.

Ground 2

1. The second ground is:

   The Tribunal committed jurisdictional error in finding in relation to the Applicant’s ability to subsist (RRT decision, para 41).

   Particulars

   The Tribunal failed to put the Applicant that the issue of him being able to subsist.

   The applicant denied procedural fairness when he was not given opportunity to address matters.

   Alternatively, the Tribunal took into account irrelevant consideration such as a previous holiday and failed to have regard to future prospects.

2. This ground makes three claims. The first is that the Tribunal did not give the applicant notice or adequate notice that his ability to subsist would be in issue. The second claim is it was not open to the Tribunal to take into account the applicant’s having travelled on a holiday as a reason for concluding the actions of the Karuna Group did not threaten the applicant’s ability to subsist. The third claim is that the Tribunal failed to have regard to the applicant’s future prospects.

3. The first claim appears to rely on the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[41] SZBEL was concerned with the obligation of the Tribunal to give an applicant reasonable notice of the issues the Tribunal considered relevant. The following passage from the Court’s judgment is relevant:[42]

   The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   [41] [2006] HCA 63; (2006) 228 CLR 152

   [42] [2006] HCA 63; (2006) 228 CLR 152 at [35]

4. The delegate did not accept that the actions of the Karuna Group affected the applicant’s ability to subsist. That is apparent in the following passage from the delegate’s reasons for decision:[43]

   I do not consider that the Karuna group would take so much fish that the applicant or other Tamil fishermen would be deprived of the capacity to subsist, based on the appellant’s account. . . . I consider the amount of fish extorted was not sufficient to amount to persecution, because at no time did the applicant assert, or does the evidence suggest, that the applicant was unable to subsist or at risk of being unable to subsist.

   [43] CB123

5. To the extent, therefore, the applicant wished to rely on the Karuna Group’s actions having the effect of depriving the applicant of his capacity to subsist, he was on notice that that was a matter he had to assert and prove to the Tribunal. This part of ground 2, therefore fails.

6. The second claim contained in ground 2 also fails. That the applicant was able to afford a holiday was evidence on which it was reasonably open to the Tribunal to rely when assessing whether the applicant’s capacity to subsist had been affected by the actions of the Karuna Group. It was reasonably open to the Tribunal to rely on the applicant’s evidence that he went on holiday, together with the other evidence on which the Tribunal relied, to conclude the applicant’s capacity to subsist had not been affected by the actions of the Karuna Group.

7. I take the third claim to be a claim that the Tribunal did not consider the applicant’s future economic prospects. This claim discloses no jurisdictional error. It is true the Tribunal did not consider the applicant’s future economic prospects per se. The applicant, however, did not claim to fear persecution or substantial harm only because of his future economic prospects. It could be said that the applicant’s future economic prospects formed an element of the claim the applicant made, or which the Tribunal treated the applicant as having made, arising out of the applicant’s claims that the Karuna Group confiscated fish from the applicant. The Tribunal, however, considered that claim and did not accept it because it was not satisfied that the Karuna Group’s activities threatened the applicant’s capacity to subsist, or that it constituted serious or significant harm, or would constitute such harm if it occurs in the reasonably foreseeable future.

8. At the hearing before me, the only submission the applicant made in relation to ground 2 is that he went to India because his family was there, the issue concerning the Karuna Group was local to his village and, therefore, there was no issue concerning his going through the airport. This does not address the matters stated in ground 2, and otherwise does not disclose any jurisdictional error by the Tribunal.

Ground 3

1. The third ground is:

   The Tribunal committed jurisdictional error since it failed to make necessary inquiries in relation to the Applicant’s view regarding his political opinions and presumed certain view point (at RRT para 47).

   Particulars

   The Tribunal failed to inquire into the Applicant’s political opinion.

   Such information was critical in respect of the claims made by the Applicant

   The Tribunal failed to consider harm that the Applicant would suffer as a result of combination of claims and the imputed political opinion therefrom.

   The Tribunal committed error in assuming view point.

2. The applicant made no submission in relation to this ground.

3. This ground appears to claim the Tribunal was obliged to ask the applicant or otherwise make inquiries about his political opinions. I do not accept that claim. The applicant did not claim he held any political opinions that would expose him to risk of harm. His claim was that he would be exposed to risk because he participated in political activities in support of the TNA.[44] The Tribunal did not accept that claim for reasons that were reasonably open to it.

   [44] See, for example, at CB142-143

4. It could be said the applicant implicitly claimed he held opinions that favoured the TNA. If that is so, however, the applicant chose to establish that fact by making claims that he participated in political activities; and the Tribunal considered a claim based on political opinion by considering and rejecting the evidence on which the applicant relied for proving he held a political opinion.

5. Ground 3, therefore, fails.

Ground 4

1. The fourth ground is:

   The Tribunal committed jurisdictional error in consideration of the harm the Applicant would suffer upon his detention when he returns to Sri Lanka.

   Particulars

   The Tribunal failed to inquire into the issue of detention.

   The Tribunal committed jurisdictional error when it applied the incorrect test in relation to the harm the Applicant would suffer upon return to Sri Lanka and erred in considering as not persecutory.

2. This ground takes issue with the Tribunal’s consideration of the applicant’s claim based on the likelihood of the applicant being detained, if he were returned to Sri Lanka, because he departed Sri Lanka illegally.

3. I do not accept the claim made in the first particular. The Tribunal considered the applicant’s claims based on the likelihood of his being detained if he returned to Sri Lanka. I also do not accept the second claim. The Tribunal identified and applied the correct legal tests for determining whether the prospects of detention in Sri Lanka brought the applicant within s.36(2)(a) and s.36(2)(aa) of the Act. In particular, the Tribunal considered, and determined against the applicant, whether the detention would be brought about because of persecution, and whether the detention would amount to significant harm within the meaning of s.36(2A) of the Act.

4. In relation to this ground, the applicant submitted that it is certain that he will be detained if he were to return to Sri Lanka. That submission, however, does not reveal any jurisdictional error. The Tribunal accepted the applicant would be detained for a short time on his return to Sri Lanka, but, for reasons that were reasonably open to the Tribunal, it was satisfied the detention would not amount to significant harm within the meaning of s.36(2A) and otherwise did not satisfy the criteria provided for in s.36(2)(a) and s.36(2)(aa) of the Act.

5. Ground 4, therefore, also fails.

Other matters

1. At the hearing, before I requested the interpreter to interpret the grounds of application, the applicant submitted that the Karuna Group is still torturing his family in his country, and that is the reason he is afraid to go back. That is an appeal to the merits of the applicant’s claims for protection. As I explained to the applicant, this Court does not have jurisdiction to determine the merits of the applicant’s claims for protection.

Disposition

1. I am not satisfied the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 October 2017