BOH17 v Minister for Immigration

[2020] FCCA 1519

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOH17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1519

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – principal applicant disbelieved in critical respects – whether the Tribunal overlooked a claim or breached s.424A of the Migration Act 1958 (Cth) or reached an erroneous finding considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA

Cases cited:

Minister for Immigration v SZMDS (2010) 240 CLR 611

BZD17 v Minister for Immigration [2018] FCAFC 94

CGA15 v Minister for Home Affairs [2019] FCAFC 46

DAO16 v Minister for Immigration [2018] FCAFC 2

Hossain v Minister for Immigration (2018) 359 ALR 1

Htun v Minister for Immigration (2001) 233 FCR 136

Minister for Immigration v SGLB (2004) 207 ALR 12

Minister for Immigration v SZLFX (2009) 238 CLR 507

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v VSAF of 2003 [2005] FCAFC 73

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Yusuf (2001) 206 CLR 323

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NAHI v Minister for Immigration [2004] FCAFC 10

SZBYR v Minister for Immigration (2007) 235 ALR 609

SZHYH v Minister for Immigration (No 3) [2019] FCA 589

VAF v Minister for Immigration (2004) 206 ALR 471

VWFW v Minister for Immigration [2006] FCAFC 29

WAEE v Minister for Immigration (2003) 75 ALD 630

WAGO of 2002 v Minister for Immigration(2002) 194 ALR 676

First Applicant: BOH17

Second Applicant: BOI17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1100 of 2017

Judgment of: Judge Driver

Hearing date: 10 June 2020

Delivered at: Sydney

Delivered on: 29 June 2020

REPRESENTATION

Counsel for the Applicants: Ms F McNeil by telephone

Solicitors for the Applicants: Rasan T Selliah & Associates

Solicitors for the Respondents: Ms B Rayment of Sparke Helmore by telephone

ORDERS

1. The application as amended by leave granted on 10 June 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1100 of 2017

BOH17

First Applicant

BOI17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 March 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.

2. There are two applicants who are a wife and her husband.  The relevant protection claims were made by the first applicant (applicant).

3. The following statement of background facts is derived from the submissions of the parties.

4. The applicants, citizens of Sri Lanka, arrived in Australia on 22 April 2014 as holders of visitor (Class FA) (Subclass 600) visas.[1]  On 16 June 2014, the applicants applied for protection visas.[2]  The second applicant is the husband of the applicant and was included in the visa application as member of the applicant’s family unit.[3]  The application included a statement from the applicant dated 12 June 2014 which summarised some country information in Sri Lanka[4] and set out her claims.[5]

   [1] Court Book (CB) 117

   [2] CB 1-33

   [3] CB 27-33

   [4] CB 34-46

   [5] CB 46-50

5. On 13 April 2015, the applicant attended an interview with the delegate.[6]

   [6] CB 107

6. On 20 April 2015, the delegate refused to grant the applicants the visas.[7]

   [7] CB 116-131

7. On 21 April 2015, the Minister’s Department received additional information from the applicant.[8]

   [8] CB 132-133

8. On 8 May 2015, the applicants applied to the Tribunal for review of the delegate’s decision.[9]  On 22/23 February 2017[10] the applicant provided to the Tribunal a written submission[11] and additional documents.[12]  On 2 March 2017, the applicants appeared before the Tribunal to give evidence and present arguments.[13]

   [9] CB 141-147

   [10] CB 205

   [11] CB 163-169

   [12] CB 170-204

   [13] CB 206

9. On 15 March 2017, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas.[14]

   [14] CB 215-237

Applicant’s claims

1. The applicant’s claims were set out in a statement attached to the visa application and may be summarised as follows:[15]

   [15] CB 34-52

   a)as a result of the conflict between the Sri Lankan Government and Liberation Tigers of Tamil Eelam (LTTE), she sent her children to further their studies in Colombo;

   b)in 1994, her husband retired as a Colonisation Officer and started farming in Jaffna under the LTTE. She witnessed Tamils fleeing from Jaffna to Vanni by boat and accommodated many overnight and provided food, medication and water to them in the refugee camps;

   c)in August 1995, the Sri Lankan Army (SLA) had advanced towards their hometown and were “bombing indiscriminately in order to kill the LTTE”. She was ordered by the LTTE to continue to distribute water and food;

   d)the applicant and her husband fled to Vanni. The LTTE commanders did not allow them to visit her son in Colombo and also stopped them from moving there;

   e)her son-in-law (S) and his brother (R) fled Sri Lanka because of their involvement with the LTTE. In 1999, R brought foreign journalists to Vanni. He had been involved in LTTE discussions regarding the conflict and had been involved from London in fundraising for refugees. She accompanied him to Norway to meet her daughter and had no difficulties at the airport;

   f)in 2002, after the signing of the peace accord, she frequently travelled to Colombo and would use money sent by R to assist refugees;

   g)in 2004, she moved to Colombo to be close to her son. After a search of LTTE cadres, her son was required to register their names at the police station. In May 2009, the applicants were taken to the police station to be questioned and told that they should live in Jaffna, not Colombo;

   h)the applicants travelled to Norway on tourist visas to visit their daughter. They sought to apply for asylum but were refused and the authorities threatened to cancel their visas and return them to Sri Lanka if they applied;

   i)the applicants returned to Sri Lanka to collect money before travelling to Australia. Upon return, the applicants were questioned at the airport by “Central Intelligence Department” (CID) officers and Tamil paramilitaries about their involvement with the LTTE and their passports were confiscated. The second applicant was released and given their new passports. The applicant was questioned separately and taken to a camp for interrogation because she had travelled to India and Norway and met and travelled with R. She was accused of advising orphaned Tamil children to join the LTTE and undertake military training; 

   j)the applicant’s husband secured her release with the assistance of a senior retired government officer and ministerial intervention after one and a half weeks’ detention on the condition that she leave Sri Lanka permanently. The second applicant’s friend was at the airport when they departed to ensure they could leave without interference from the CID or paramilitaries.

2. In written submissions received after the delegate’s decision, the applicant claimed that R had become the General Secretary of the British Tamil Forum and that the Sri Lankan Government had listed him as a designated person involved in proscribed activities.[16]

   [16] CB 132-133

3. In written submissions to the Tribunal dated 22 February 2017, the applicant claimed to fear harm on the basis:[17]

   a)of her Tamil “race”;

   b)on account of being a Tamil woman with links to the LTTE;

   c)as a Tamil woman from Jaffna district which was under control of the LTTE and who interacted with LTTE cadres;

   d)as a Tamil woman suspected of past LTTE links and having links to the Tamil diaspora supporting the revival of the LTTE; and

   e)upon return as a failed asylum seeker.

   [17] CB 163-169

4. At the Tribunal hearing, the applicant also claimed that spies had been present in the countries she had visited over the years when she had interacted with R.[18]

   [18] CB 230, [48]

Tribunal decision

1. The Tribunal had a number of concerns about the credibility of the applicant’s claims.[19] It identified five key credibility concerns as follows:

   a)noting the applicant’s evidence that the authorities began to take an interest in her in February 2014 while she was in Norway and she was detained upon return to Sri Lanka in April 2014, it considered that it was not credible that in the period between February and April 2014, the authorities would have been able to undertake complex investigations relating to her previous activities and travel history dating back many years (to 1996).[20]  It put its concerns to the applicant at the hearing but was not satisfied with her response that there were spies present when she had interacted with R.[21] It found that the scenario presented by the applicant was highly unlikely and significantly undermined her claims;[22]

   b)while claiming that the authorities told her that they had evidence implicating her, the applicant provided no detail of the substance of that evidence. It found her explanation for why the details of the incriminating evidence were not put to her to be “unlikely”.[23] It also noted inconsistencies in her evidence about when and where she was questioned;[24]

   c)it considered her claim that she was released following the payment of a bribe and told that she should never return to Sri Lanka “defies credibility”, given the allegations that she was supporting LTTE separatism.[25]  It recorded that it put to her country information which suggested that the Sri Lankan authorities were deeply concerned by individuals actively engaged in LTTE separatist activities and such people were at risk of severe sanctions and treatment by the government.[26]  As such, it did not consider it credible that she was released through bribery, particularly given her links to R, a proscribed person.[27]  It further found that it was not credible that she was allowed to travel to Australia where she could potentially engage in separatist activity;[28]

   d)the Tribunal noted that the second applicant had given inconsistent evidence in relation to his knowledge of where the applicant was taken when they were detained at the airport in April 2014.[29]  It noted that the evidence related to “a reasonably fine point”, but that it undermined the overall credibility of the second applicant and claims surrounding the incident at the airport, and “buttresse[d] other credibility concerns”;[30]

   e)given the nature of the claimed allegations against the applicant, the Tribunal did not consider it credible that the applicants’ passports would have been returned to the second applicant before he left the airport in April 2014. Rather, the authorities would have had significant concerns about the applicant leaving the country to continue pro-LTTE activities.[31]

   [19] CB 229, [39]

   [20] CB 229-230, [41]-[47]

   [21] CB 230, [48]-[49]

   [22] CB 231, [50]

   [23] CB 231, [51]

   [24] CB 231, [53]-[54]

   [25] CB 231, [56]

   [26] CB 231, [57]

   [27] CB 232, [59]

   [28] CB 232, [60]

   [29] CB 232, [63]

   [30] CB 233, [68]

   [31] CB 233, [69]-[70]

2. The Tribunal considered the above credibility issues cumulatively and found that the applicants had not been truthful in their accounts as to what occurred on their return to Sri Lanka in 2014.[32]

   [32] CB 233, [71]

3. The Tribunal’s credibility concerns were “buttressed by an inconsistency in claims of an application for asylum in Norway in 2014”.[33]  The Tribunal noted that it was unable to obtain clear evidence from the applicant in relation to this issue and that her evidence that she was unable to claim asylum in Norway was inconsistent with independent information. Further, at the hearing she stated that Norway was too cold and that they preferred to stay in Sri Lanka.[34]

   [33] CB 233, [72]

   [34] CB 233, [72]-[73]

4. In light of its cumulative credibility findings, the Tribunal was not satisfied that the applicant was detained and questioned at the airport in April 2014.[35] It was also not satisfied that there had been any investigations made into the applicant’s alleged pro-LTTE conduct, that she had assisted LTTE members leaving the country, that there had been allegations against her of being an informer or arising out of interactions in Norway and India, that she was of adverse interest to the authorities or told to leave Sri Lanka permanently.[36]

   [35] CB 233 [76]

   [36] CB 234, [76]

5. The Tribunal was prepared to accept that R was the brother of the applicant’s son-in-law, who was involved in LTTE separatist activities and that the applicant had known R for a number of years and had interacted with him in Sri Lanka and overseas. Further, it was prepared to accept that the applicant had provided some general observations to R about the mistreatment of Tamils by the authorities during the civil conflict.[37]  However, it found that relationship was “a reasonably distant family relationship” and any information about the mistreatment of Tamils was not provided as part of any joint political activities.[38] Taking into account country information, the Tribunal did not consider that the applicant was “perceived as an informer or, herself, being a separatist activist” as a result of her connection with R.[39]  Accordingly, it was not satisfied that the applicant faced a real chance of serious or significant harm as a result of this relationship.[40]

   [37] CB 234, [78]

   [38] CB 234, [79]

   [39] CB 234, [80]-[81]

   [40] CB 235, [83]

6. The Tribunal was satisfied that the applicant had links to the LTTE during the conflict.[41]  However, it was not satisfied that she faced a real chance of significant harm on account of this. Noting country information and that the applicant had travelled abroad on six occasions since 1999 without incident, the Tribunal was not satisfied that she faced a real risk of serious harm on account of being Tamil or a Tamil woman from Jaffna who had links with the LTTE or who had interacted with LTTE.[42]  Further, on the basis of its assessment of country information, the Tribunal was not satisfied that the applicant was at risk of harm as a result of being a failed asylum seeker.[43]

   [41] CB 235-236, [90]

   [42] CB 235-236, [85]-[90]

   [43] CB 236, [92]-[96]

7. The Tribunal was not satisfied that the applicants met the refugee criterion or alternative criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[44]  Accordingly the Tribunal affirmed the decision under review.[45]

   [44] CB 237, [104]-[106]

   [45] CB 237, [107]

The current proceedings

1. These proceedings began with a show cause application filed on 11 April 2017.  The applicants now rely upon an amended application filed on 22 May 2020 in respect of which I granted leave at the trial on 10 June 2020.  The amended applications abandons Grounds 1 and 4 in the original application and adds a new Ground 5.  The current grounds are:

   2. The Second Respondent committed jurisdictional error by failing to consider or making a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.

   Particulars:

   1.1 In the submission to the Administrative Appeal Tribunal applicant stated that one of the reasons she fears to go back to Sri Lanka is because of being a “a Tamil woman suspected of past LTTE links and having links with sections of the Tamil Diaspora supporting the revival of the LTTE in Sri Lanka”.

   3. The Tribunal failed to comply with s424A of the Act in that it failed to give to the applicants notice in accordance with that section of clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and failed to ensure, so far are reasonably practicable, why the information was relevant to the review.

   Particulars

   (a)The Tribunal took into account at paragraph 63 stating that "there is an inconsistency in the evidence of the applicant husband in relation to his knowledge of where the applicant was being taken when they were detained at the airport in April 2014". That information was:

   i.      personal to the applicant;

   ii.     not put to the applicants pursuant to s424AA;

   iii.     was not put to the applicants in writing for comment under s 424A;

   iv.     was part of the reason for affirming the decision under review: see paragraph [63-68].

   5. The Second Respondent at paragraph 76 of its decision found that it "is not satisfied that the applicant was detained and questioned on arrival in Sri Lanka in April 2014" ("the Rejection of Detention Claim Finding"). For reasons including the following, this finding is infected by jurisdictional error:

   a) The Second Respondent found at paragraph 69, as a reason for the Rejection of Detention Claim finding, that the evidence of the applicant and her husband that their passports were returned to the applicant husband at the airport was “not credible”.  The Second Respondent erred in making this finding.  Among other reasons, the finding involved an unwarranted assumption concerning security and border control procedures of the authorities in Sri Lanka.

   b)The Second Respondent found at paragraph 55, as a reason for the Rejection of Detention Claim Finding, that it was "very unlikely that, if there was supporting evidence ... the substance of that evidence would not have been put to the applicant at an early opportunity following her detention". The Second Respondent erred in making this finding. Among other reasons, the finding involved an unwarranted assumption concerning interrogation techniques by the authorities in Sri Lanka.

   c)The Second Respondent found at paragraph 56, as a reason for the Rejection of Detention Claim Finding, that the applicant's claim that she was released through payment of a bribe and then told to leave the country "defies credibility". The Second Respondent erred in making this finding. One reason is because the finding involves an unwarranted assumption concerning the conduct of government officers in Sri Lanka. A second reason is that the Second Respondent overlooked evidence at CB 165 in making this finding.

   d)The Second Respondent found at paragraph 49, as a reason for the Rejection of Detention Claim Finding, that the task of trawling back over 18 years in relation to activities of the applicant "would be an enormously complex and time consuming task" which "could not possibly have happened in the short period between the end of February 2014 ... and 6 April 2014". The Second Respondent erred in making this finding. Among other reasons, the finding involved an unwarranted assumption concerning the resources available to the Sri Lankan government.

2. I have before me as evidence the court book filed on 24 August 2017 and the affidavit of Freshta Nawabi made on 20 September 2017, to which is annexed a transcript of the hearing conducted by the Tribunal. 

3. Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial.  I have been assisted by those submissions. 

Consideration

Ground 2 – did the Tribunal fail to consider or make a finding on a claim or integer that arose squarely from the material before it?

1. Ground 2 contends that the Tribunal fell into error through failing to consider an integer of her claim, namely, that she would be perceived as “a Tamil woman suspected of… having links with sections of the Tamil dispora supporting the revival of the LTTE in Sri Lanka”, which was advanced in her submission to the Tribunal dated 22 February 2017.[46]

   [46] CB 163-169

1. The applicant claimed that, if required to return to Sri Lanka, the authorities will perceive her as, among other things, “a Tamil woman suspected of … having links with sections of the Tamil diaspora supporting the revival of the LTTE in Sri Lanka”.[47]

   [47] see written submission by applicant wife to the Tribunal dated 22 February 2017 at CB 168.9

2. The applicant’s evidence concerning “having links with sections of the Tamil diaspora supporting the revival of the LTTE in Sri Lanka” was as follows.  The applicant has a daughter who is married to a man whose brother was R.[48]  R was an activist who supported Tamil causes.  Prior to the collapse of the LTTE in 2009, he collected money from overseas countries for Tamil causes and was involved in “peace negotiations through the foreign nationals”.[49]  After the collapse of the LTTE in 2009, R “was the General Secretary of the British Tamil Forum and was fighting for the rights of the Tamils in Sri Lanka”.[50]  R “was publicly involved in condemning President Rajapakse’s involvement in genocide of Tamils and was organising meetings and protest marches in London”.[51]  The applicant’s son-in-law “was also involved in Tamil forums in Norway”.[52]  The applicant and R were “close” and the applicant “met him whenever I visited Norway to see my daughter”.[53]  In early 2014 the applicant spent a month living in the same house as R in Norway, during which period the applicant and R spoke a number of times about the plight of Tamils in Sri Lanka.[54]  As a result of this connection, the applicant believed that she would be suspected of “having links with sections of the Tamil diaspora supporting the revival of the LTTE in Sri Lanka”.

   [48] CB 47

   [49] CB 47-48

   [50] CB 49

   [51] CB 49

   [52] CB 49

   [53] CB 48

   [54] page 7 of transcript annexed to affidavit of Ms Nawabi

3. The Tribunal’s decision is divided into several sections.  Paragraphs [12]-[26] of the decision are in the section titled “Background and claims”.  In this section, the Tribunal at [25][55] summarised this part of the applicant’s letter where it recorded that in the letter the applicant wife:

   claims harm in Sri Lanka based upon being: a Tamil; a Tamil woman with links to the LTTE; a Tamil woman from the Jaffna district which was under control of the LTTE; a Tamil woman who worked as a volunteer in refugee camps in Vanni which were under control of the LTTE and interacted with LTTE cadres in the camp; a Tamil woman suspected of past LTTE links and having had links with sections of the Tamil diaspora and supporting the revival of the LTTE in Sri Lanka; and a failed asylum seeker.

   (emphasis added)

   [55] CB 219

4. Paragraphs [34]-[106] of the decision are in the section titled “Hearing, credibility, findings and assessment”.  In this section, the Tribunal makes its findings.  The Tribunal stated at [84]:

   In the written submission to the Tribunal the applicants claimed harm on the basis of being of Tamil race; a Tamil woman with links to the LTTE; and a Tamil woman from the Jaffna district under control of the LTTE and who interacted with LTTE cadres.

5. The Tribunal, after recording its consideration of the claims and discussions with the applicant at [85]-[88], concluded at [89]:

   For these reasons, the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm based on being a Tamil or a Tamil woman from the Jaffna district under control of the LTTE who had links with them and/or who interacted with LTTE cadres.  The Tribunal does not consider that humanitarian work undertaken by the applicant during the civil conflict would lead to concerns by authorities such as to result in a real chance of the applicant facing serious or significant harm.

6. While the Tribunal dealt with other integers of the applicant’s claims, the applicants contend that the Tribunal did not deal with the claim that the applicant feared that the authorities will perceive her as “a Tamil woman suspected of … having links with sections of the Tamil diaspora supporting the revival of the LTTE in Sri Lanka”.  As explained above, there was evidence before the Tribunal to support the claim.

7. Where a decision-maker under the Migration Act fails to deal with an integer of claim expressly made, this is a jurisdictional error. In NABE v Minister for Immigration (No 2)[56] at [55]-[63] the Full Federal Court stated in part:

   [56] (2004) 144 FCR 1

   [55] … Where the tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …

   …

   [58] The review process is inquisitorial rather than adversarial. The tribunal is required to deal with the case raised by the material or evidence before it: …. There is authority for the proposition that the tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 ; 199 ALR 265 ; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal …

   [63] … It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 

8. In Htun v Minister for Immigration[57] at [42] Allsop J (as he then was) stated:

   The “participation in the Karen community and the political groups” could be said to have been dealt with by the tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation — that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. 

   [57] (2001) 233 FCR 136

9. I prefer the Minister’s submissions in relation to this ground. 

10. This matter is distinguishable from NABE and Htun. In the present matter, the Tribunal rejected the factual premise upon which the claim that the applicant contends was not considered rested. That claim could not survive the Tribunal’s findings so as to warrant separate consideration. As revealed by the applicants’ submissions, the applicant’s claim to fear harm on the basis of her “links with sections of the Tamil diaspora supporting the revival of the LTTE in Sri Lanka” was based upon her claimed connection to R. The Tribunal did not accept that the applicant had been involved in separatist activities with R or that she was perceived by the authorities as being involved in such a way.[58]  Nor did it accept that the applicant was of any adverse interest to the authorities[59] or that she would be perceived as “an informer or, herself, being a separatist activist”.[60]  It concluded that the applicant’s relationship with R was only that of a distant family member and it was not satisfied that their relationship led to the applicant facing a real chance of harm from authorities.[61]  Whilst the Tribunal did not specifically reject the claim as phrased by the applicant, the Tribunal considered and made findings on each element of the claim in question as detailed above.  In light of its findings, the Tribunal was not required to proceed to consider the claim any further because disposal of that claim was subsumed in its prior findings.[62] It is well-established that the Tribunal is not required to “refer to every piece of evidence and every contention made by an applicant”.[63] The applicant’s criticism of the Tribunal’s reasons by this ground does not expose jurisdictional error. Rather, it approaches the Tribunal’s reasons with an eye attuned to the perception of error which is contrary to principle.[64]

    [58] CB 234, [79]

    [59] CB 233-234, [76]

    [60] CB 234, [81]

    [61] CB 235, [82]

    [62] WAEE v Minister for Immigration (2003) 75 ALD 630 at [47], and Minister for Immigration v Yusuf (2001) 206 CLR 323 at [91]

    [63] Ibid.

    [64] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

Ground 3 – did the Tribunal fail to comply with s.424A of the Migration Act?

1. Ground 3 contends that the Tribunal failed to comply with s.424A of the Migration Act by failing to put the inconsistencies in the second applicant’s evidence, being his knowledge of where the applicant was being taken following her detention at the airport in 2014, to the applicant for comment. The applicants concede the Court is bound by the High Court’s decision made by SZBYR v Minister for Immigration[65]  and that this ground cannot be sustained. 

   [65] (2007) 235 ALR 609

2. I accept the Minister’s submission that the Tribunal was not required to put to the applicant the inconsistencies in the second applicant’s evidence as it was not “information” within the meaning of SZBYR. The authorities make clear that in order to enliven the Tribunal’s obligations under ss.424A and 424AA of the Migration Act, the information must contain “in its terms a rejection, denial or undermining” of the applicant’s claims.[66] While the Tribunal noted that the concerns it held as to the second applicant’s credibility was “telling as to…the truth of the claims” and buttressed “other credibility concerns [in relation to the first applicant]”,[67] the second applicant’s evidence as to his actions following his wife’s detention at the airport did not, in its terms, constitute a “rejection, denial or undermining” of the applicant’s evidence and it was therefore not “information” within the meaning of ss.424A or 424AA of the Migration Act.[68]

Ground 5 – did the Tribunal rely upon unwarranted assumptions in drawing adverse credibility conclusions in relation to the applicant’s claims of detention and questioning on her last visit to Sri Lanka? 

[66] SZBYR at [17]; Minister for Immigration v SZLFX (2009) 238 CLR 507 at [22]

[67] CB 233, [68]

[68] VAF v Minister for Immigration (2004) 206 ALR 471 at 476-477

1. This is the most significant of the applicants’ contentions.

2. Ground 5 contends that the Tribunal’s adverse finding that it was “not satisfied that the applicant was detained and questioned on arrival in Sri Lanka in April 2014” at [76] is infected by jurisdictional error as its preceding reasoning proceeded on “unwarranted assumptions” unsupported by country information.

3. In DAO16 v Minister for Immigration[69] at [45] the Full Federal Court stated:

   Thirdly, as the appellant submits, a consideration of the AAT’s reasons discloses that many of its findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. An example is the disbelief expressed by the AAT member as to, among other things, the polygamous nature of some of the sexual relationships between the appellant and a number of the witnesses at [62]–[63] of its reasons. As a further example, in finding at [73] that “the witnesses who have provided statutory declarations and oral evidence to support the applicant’s applications for Protection visas have been willing to provide false evidence to support the applicant’s claims”, the AAT took into account among other things “the lack of independent witnesses until recently, despite the fact that the applicant lives in a city which has a sizeable and visible homosexual population”. Among other objections that might be made to this line of reasoning, it is underpinned by an unwarranted assumption that if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men. Furthermore, the finding shows no appreciation of the fact that a visa applicant is entitled to call evidence afresh before the AAT, including to address issues considered dispositive by the delegate bearing in mind that the issues before the Tribunal are usually the issues raised by the decision under review (SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; 93 ALD 300; [2006] HCA 63 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)). Bearing in mind that the further evidence was not relied upon here to raise a new claim, the mere fact that the appellant relied upon evidence from additional witnesses in support of his claim to be homosexual in circumstances where the delegate did not believe that claim, does not logically suggest that the additional witnesses were giving false evidence.

   [69] [2018] FCAFC 2

4. In BZD17 v Minister for Immigration[70] at [58] the Full Federal Court stated:

   As the appellant submitted, however, the finding that the information regarding the assault could have been passed on anonymously to activists outside Cameroon for them to post was not supported by any evidence; indeed the only evidence suggested the contrary. That unwarranted assumption, in turn, was relied upon by the Tribunal as material in forming its view as to the credibility of the appellant. In our view this was an error of the kind identified by Flick J in SZVAP at [22]: see above at [36].

   [70] [2018] FCAFC 94

5. In WAGO of 2002 v Minister for Immigration[71] at [54] the majority stated:

   The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it.[72]

   [71] (2002) 194 ALR 676

   [72] see also SZHYH v Minister for Immigration (No 3) [2019] FCA 589

6. The Tribunal had before it country information in the following terms:[73]

   Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country.  According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases.  ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport.  ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be on interest, including due to separatist or criminal activities.  Those on a watch list are not likely to be detained, although there have been some media reports claiming that individuals, mostly Tamils, travelling from the United Kingdom have been detained on arrival at the airport.  DFAT has not been able to verify these reports but notes that those on a watch list are likely to be monitored.

   [73] CB 222

7. It may be accepted from the country information available to the Tribunal that the Sri Lankan authorities take a very close interest in what might be described as “LTTE resurrectionist elements” within the Tamil diaspora.  It is also reasonable to suppose that a person having a profile of involvement with such resurrectionist elements would be on a watchlist and could expect to be detained and questioned on return to Sri Lanka.  What appears improbable from the country information is that such a person would be released and sent on their way with a warning never to return or (depending upon their profile as a person of interest) that such a person could secure their release through bribery. 

8. In the present case, through a process of detailed reasoning (not all of which is beyond question) the Tribunal concluded that the applicant’s claims in relation to her detention, questioning, release through bribery and departure lacked credibility.

9. While some of the reasoning of the Tribunal may be debatable, I agree with the Minister that the Tribunal’s reasoning does not point to an error going to jurisdiction.

10. Further, unlike the impugned finding in CGA15 v Minister for Home Affairs[74] on which the applicant seeks to rely, the Tribunal’s findings leading to its conclusion that it was not satisfied “that the applicant was detained and question in arrival in Sri Lanka in April 2014” at [76] can “easily be severed from the Tribunal’s other reasons” for rejecting the claim.[75]  Thus, insofar as any of the Tribunal’s findings could be said to be defective, they were stand alone findings supporting the Tribunal’s rejection of the claim. In circumstances where the Tribunal provided alternate and independent bases for rejecting the applicant’s claim, any illogicality in some but not all of the alternative bases could not be said to amount to an error that prevented the Tribunal from exercising its jurisdiction.[76]

    [74] [2019] FCAFC 46

    [75] CGA15 at [61]

    [76] Hossain v Minister for Immigration (2018) 359 ALR 1 at [29]-[31] (per Kiefel CJ, Gageler and Keane JJ)

11. The applicants take issue with the Tribunal’s finding at [69]-[70][77] on the basis that it did not refer to or have before it evidence or country information concerning “country practices” to support its finding. This complaint is misconceived. The Tribunal’s reasoning reveals that it considered the applicant’s claim was simply “not credible”. Given the applicant’s evidence regarding the allegations being made against her, it was logically open to the Tribunal to find it implausible that the authorities would return her passport in circumstances where she was to be retained for detention and further interrogation.[78] The Tribunal was not required to have evidence to support its finding and the applicant’s assertion that it required country information to do so is unexplained and contrary to principle.[79]  There was a logical connection between the applicant’s evidence and the inferences and conclusion drawn by the Tribunal.[80]  In essence, this is an attack on the merits of the Tribunal’s findings and cannot be sustained.

    [77] CB 233

    [78] CB 233, [69]

    [79] Minister for Immigration v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [20].

    [80] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [135] (per Crennan and Bell JJ).

1. The applicants contend that the Tribunal’s finding at [59] was also based on an “unwarranted assumption” unsupported by country information, and that the Tribunal overlooked significant information in the form of independent evidence demonstrating that people with affiliations with the LTTE had secured their release through bribery. These contentions too fail to reveal error. First, it is well settled that the country information to which the Tribunal has regard and the weight it gives that information are generally matters for the Tribunal.[81]  Secondly, the Tribunal plainly referred to the independent evidence in support of the applicant’s claim that individuals detained in Sri Lanka may be released through bribery.[82] However, the Tribunal found the applicant’s evidence that she was told to leave the country lacked “inherent credibility”.[83] In circumstances where the Tribunal did not accept the factual basis which gave rise to this claim, there was no need for the Tribunal to set out the contents of the independent evidence or otherwise engage with it.[84] The Tribunal’s decision to reject the applicant’s evidence was clearly open on the material before it and the applicants’ contention discloses no jurisdictional error.

   [81] NAHI v Minister for Immigration [2004] FCAFC 10; VWFW v Minister for Immigration [2006] FCAFC 29

   [82] CB 232, [59]

   [83] CB 232, [62]

   [84] NAHI at [11]-[13]

2. The applicants further contend that the Tribunal’s reasoning at [51]-[55] was unwarranted as the Tribunal did not refer to or have evidence before it concerning interrogation practices in Sri Lanka. The applicants’ submissions fail to grapple with the basis of the Tribunal’s conclusion at [55]. The conclusion reached by the Tribunal was not based solely on its views of what processes would be undertaken by the authorities in interrogating the applicant but also arose from the applicant’s shifting evidence about when or what allegations were put to her.[85]  I accept that there was a logical connection between the evidence and the inferences and conclusions drawn by the Tribunal.[86]

   [85] CB 231, [53]-[54]

   [86] SZMDS at [135] (per Crennan and Bell JJ)

3. Finally, the applicants assert that the Tribunal made an unwarranted assumption at [41]-[50] by failing to refer to country information concerning police resources and practices in concluding that it was highly unlikely that the authorities could have conducted an investigation going back some 18 years and across numerous countries in the space of a few months. Plainly, given the claims advanced by the applicant, the conclusion reached by the Tribunal at [50] was open, particularly when regard is had to the Tribunal’s reasons at [49], which the applicants’ submissions do not acknowledge. There, the Tribunal explained in detail the logical reasons for why it did not consider it credible that the claimed investigation into the applicant could have taken place in such a short period of time.

Conclusion

1. I conclude that the applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 29 June 2020