Boy17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 1520

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOY17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2020] FCCA 1520

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether administrative appeals tribunal considered all claims expressly made by the applicant – whether any omission to consider any claim was material to the decision of the administrative appeals tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 417, 474, 476

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136

Hossain v Minister for Immigration and Border Protection& Anor [2018] HCA34

Minister for Immigration and Border Protection v SZMTA  & Anor [2019] HCA 3

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 347

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: BOY17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number:   SYG 1122 of 2017

Judgment of: Judge Emmett

Hearing date: 1 June 2020

Date of Last Submission: 1 June 2020

Delivered at: Sydney

Delivered on: 23 July 2020

REPRESENTATION

Counsel for the Applicant: Leonard Karp

Solicitors for the Applicant: Rasan Selliah & Associates

Counsel for the Respondents: Nicholas Swan

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1122 of 2017

BOY17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application made pursuant to s.476(1) of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 30 November 2016 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) to refuse to grant the applicant a Protection visa.

Background

1. On 27 December 2012, the applicant arrived in Australia.

2. On 22 January 2013, the applicant lodged a Protection visa application.

3. On 25 July 2013, a Delegate of the first respondent refused to grant the applicant a Protection visa on the basis that the applicant is not a person to whom Australia has protection obligations.

4. On 14 August 2014, the applicant lodged a Review Application of the Delegate’s decision with the Refugee Review Tribunal.

5. On 26 August 2014, the Refugee Review Tribunal affirmed the decision of the Delegate to refuse to grant the applicant a Protection visa.

6. On 19 October 2015, writs were issued by Judge Manousaridis by consent, quashing the decision of the Refugee Review Tribunal and ordering that the Refugee Review Tribunal determine the matter according to law.  

7. On 30 November 2016, the Tribunal determined the matter on remitter and again affirmed the Delegate’s decision refusing the applicant a Protection visa.

8. On 30 November 2016, the Tribunal referred the applicant’s case to the Department of Immigration and Border Protection for possible consideration under s.417 of the Act. Ultimately, that application was unsuccessful.

9. On 12 April 2017, the applicant filed the application for judicial review, the subject of this judgment.

The applicant’s claims

1. The applicant’s claims are accurately summarised in the written submission of counsel for the applicant as follows:

   “3. The Tribunal, at CB 294 [89] accepted that the applicant was questioned and seriously mistreated in a displaced persons’ camp after the war. That acceptances was based on a detailed and graphic account of his experiences as described to a STARTTS psychologist (CB 228-230). Given his experiences it is not surprising that his claims emerged over the course of the proceedings before the Minister, the RRT and the current Tribunal.

   4. In the statement submitted with his original application he claimed that his brother aged 15 had been killed by a shell in October 2000 and his married sister died on 15 April 2009 after suffering cluster bomb injuries on 15 April 2009 (CB 47). He described his incarceration in a displaced persons camp where he was identified as being associated the LTTE by masked informers and tortured. He described how his escape was assisted by a Muslim man to whom a bribe had been paid, how this man had helped him get a passport and an air ticket to India where he lived from January 2010 to December 2016. He also described being harassed by the “Q Branch”, a criminal Investigation Department of the police in the Indian state of Tamil Nadu (CB 48). During his interview with the Minister’s delegate it emerged that the brother who was killed in 2000 had been conscripted by the LTTE and killed shortly afterwards (CB 101).

   5. A submission lodged with the RRT, dated 20 May 2014 (CB 126-135), summarised an [sic] expanded upon those claims to the effect that:

   (a) The applicant’s brother was forcibly conscripted into the LTTE. The brother was given the posthumous title of “Maveerar” (Great Hero) by the LTTE.

   (b) His sister was killed by injuries received during fighting between the LTTE and army.

   (c) Another brother was a forced conscript of the LTTE but escaped and fled to Australia and has been granted permanent residence.

   (d) The applicant was forced to undergo training with the LTTE, including three days training with weapons (CB 128 [6]).

   (e) The family relocated several times to avoid the war (CB 128 [7]-[8]).

   (f) LTTE cadres used to come and take whatever they wanted from the farm where the applicant had been working. The family also gave cash contributions, and food parcels to LTTE cadres (CB 128 [9]).

   (g) At the time there were Tamil civilians in the vicinity who acted as informants for the army, and the applicant’s family was known as a “Tiger family”. He would have been forcibly conscripted but for the fact that he was from the family of a “Maveerar”, or “Great Hero”. (CB 128 [9]).

   (h) During the final stages of the war the applicant and members of his family were taken to an army controlled area where he and his brother in law, Gavaskar, were identified by masked men as LTTE cadres or supporters. It was after this that he and Gavaskar were tortured. He still bears the physical and emotional scars (CB 129 [11]-[15]).

   (i) Other members of his family were released, but not Gavaskar nor the applicant. A Muslim cook at the camp helped them escape the camp and obtain passports and passage to India (CB 129-30 [16]).

   6. During the RRT hearing the applicant gave evidence that he was related to LTTE fallen heroes including a certain Brigadier Balraj (CB 174 [105]). It emerged at that hearing that Brigadier Balraj was his maternal grandmother’s sister’s son, and that the people in his grandmother’s village and three other villages were all related to him in some way (CB 174 [106]). He also said that his relationship to the Brigadier was common knowledge (CB 175 [112]).

   7. A detailed statement of the applicant’s claims was also annexed to the STARTTS report (CB 223-231).

   8. Another submission with annexed country information, dated 20 September 2016 (CB 256-273), referred to army instigated extortion responsible for terrorising and oppressing Tamils. The country information, sourced at the International Truth and Justice Project, the Colombo Telegraphy and the Immigration and Refugee Board of Canada, was to the effect that extortion of Tamils military personnel is widespread and has been described as an “industry” (CB 269-70).”

The Tribunal’s decision

1. The Tribunal’s decision, dated 30 November 2016, is accurately summarised in the written submissions of counsel for the first respondent as follows:

   “5. The Tribunal summarised the background to the matter (CB 283-284 [1]-[17]), and the evidence, submissions and claims made to it (CB 285-287 [23]-[38]).

   6. The Tribunal accepted that the Applicant was of Tamil ethnicity and a Hindu (CB 287 [39]). It also accepted that the Applicant and his family lived in Mulliyawalai (an LTTE controlled area) until October 2008, that the Applicant’s family owned a farm at which the Applicant worked from time to time, and that LTTE cadres would sometimes come to the farm and take produce without making payment (CB 288-289 [48]-[51]). It also accepted that the Applicant and his family were taken to the Ananda Kumarasamy Camp in Vavuniya (CB 289 [52]).

   7. The Tribunal accepted that the Applicant’s brother, an LTTE conscript, had been killed by shelling in 2000, and that his sister (a civilian) had been killed in 2009 (CB 289 [53]-[54]; 291 [67]). It also accepted that the Applicant was forced to undertake one month’s LTTE self-defence training in 2008, but did not accept that he received any weapons training (CB 290 [66]). It did not accept that the Applicant had a close relationship with Brigadier Balraj (of the LTTE) (CB 291 [68]). It also found that the Applicant was not an LTTE cadre and did not fight for the LTTE during the latter stages of the conflict (CB 292 [72]).

   8. The Tribunal did not accept that the Applicant was taken from the Ananda Kumarasamy Camp, after 2-3 weeks, and detained in the Omanthai camp for 5-6 months. Instead, it accepted that he had been questioned and mistreated during interrogation about whether he had any LTTE links, but found that he was then released because he was of no further interest to the authorities. The Tribunal found that the Applicant then returned to the Anada Kumarasamy Camp, rather than having escaped from the Omanthai camp as claimed (CB 294-295 [88]-[94]). The Tribunal also found that the Applicant attended the passport office and collected his passport personally on or about 8 December 2009. He had no difficulties in doing so, and the Tribunal considered that the Applicant would not have been able to obtain a passport if the authorities, or Sri Lankan Army, had any serious adverse interest in him (CB 297 [119]). It further found that the applicant and his family departed Sri Lanka on 18 January 2010, for India (CB 298 [120]).

   9. The Tribunal did not accept, on the country information available to it, that the Applicant faced a real chance of being seriously harmed on account of being a young Tamil male (CB 301 [141]-[142]). The Tribunal also did not accept that the Applicant would be of adverse interest to the authorities if he returned to Sri Lanka, or that he faces a real chance of persecution on account of any imputed political opinion, from his training with the LTTE or his family links to the LTTE (CB 303 [153]). It also did not accept that the Applicant was at risk of arrest, detention, or monitoring for reason of his family links to the LTTE (CB 303 [153]). The Tribunal observed that the Applicant’s departure from the airport in 2010 indicated that he was assessed by the authorities and found to be of no adverse interest at that time (CB 304 [155]). It also observed that his family had returned to Sri Lanka in May 2013, and had not suffered any serious harm since then (CB 304 [156]). It concluded that he would not be of adverse interest to the authorities, inter alia, because he had “only some marginal and historical family connections with the LTTE” (CB 304 [158]; 306 [166]). The Tribunal also did not accept that the Applicant would face any adverse treatment for reason of having sought asylum in Australia (CB 305 [166]). The Tribunal thus concluded that the Applicant did not have a well-founded fear of persecution for a Convention reason (CB 306 [167]). In reliance on its earlier findings, it also found that the Applicant did not face a real risk of significant harm (CB 306-307 [168]-179]). The Tribunal accordingly, affirmed the delegate’s decision.”

The Proceeding before this Court

1. The applicant was represented before this Court by Mr Leonard Karp, of counsel.

2. At the outset of the hearing, Mr Karp confirmed that the applicant relied on the ground of the initiating application for judicial review, filed on 12 April 2017. That ground is as follows:

   “1. The Tribunal erred in that it failed to consider a claim expressly made by the applicant, and whether he had a well founded fear of persecution in view of that claim in combination with other claims that he made.

   Particulars

   (a) The claim that there were many informant families in the area where the applicant had lived and that the applicant’s family was perceived to be a “Tiger Family”.”

3. In his written submissions, counsel for the applicant identified the claims for review as follows:

   “(a) There were Tamil civilians in the vicinity of the applicant’s family farm who acted as informants for the army, and the applicant’s family was known as a “Tiger family”.

   (b) Extortion, especially of Tamils, at the hands of army personnel is widespread in Sri Lanka.”

4. Counsel for the first respondent in his written submission submits that the allegation of a failure to deal with a claim relating to the extortion of Tamils, as asserted in (b) above, was not identified as a ground of review in the application and was not the subject of written submissions other than to assert that “being brought to the attention of the army would also, on the evidence before the Tribunal, increase the chances of the applicant being the victim of extortion.”

5. Further, the applicant’s counsel did not make any specific oral submissions in relation to (b).

6. Whilst not expressly raised, I did not understand the applicant to be pursuing (b) independently from the applicant’s claim that the Tribunal failed to consider the risk of harm to the applicant where his family was known as a “Tiger family” and that there were Tamil civilians in the vicinity of the family’s farm who acted as informants for the army.

7. Mr Karp did submit that if the applicant was perceived to be a member of a Tiger family, he may have been in danger and the victim of extortion. In support of that allegation, Mr Karp referred to country information references provided by the applicant to the Tribunal in an “Appendix” to submissions to the Tribunal, dated 20 September 2016.

8. The applicant did not refer to a specific claim in relation to a fear of extortion at the hands of army personnel in express terms either in written submissions to the Tribunal or in written or oral submissions to this Court. As stated above, the reference upon which the applicant relies for that claim is simply made in the context of country information references contained in the “Appendix” referred to above. The body of the submission to which the “Appendix” is annexed also does not identify in terms a fear or a risk of extortion of the applicant at the hands of army personnel if returned to Sri Lanka.

9. In the circumstances, I do not accept that such a claim was expressly made by the applicant or squarely arose on the material before the Tribunal.  The function of the Tribunal is to respond to the case that the applicant advances (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]).

10. In any event, the Tribunal accepted that the applicant suffered trauma in Sri Lanka; that his brother and sister were killed in the conflict; that he lived in LTTE controlled areas that were shelled at the end of the conflict; that his family had to move from place to place to avoid conflict; that he was subjected to serious mistreatment; and, that he and his family left Sri Lanka and lived as displaced persons in India in difficult circumstances.

11. However, the Tribunal did not accept that the applicant escaped from an army run detention camp sometime in December 2009. The Tribunal found that, after a period of interrogation, the applicant was released as a person who was of no further interest to authorities.

12. The applicant then returned to join his family in the Ananda Camp before the family departed for Negombo and some time before the applicant was issued on 8 December 2009 and the family’s later departure from Sri Lanka. The Tribunal found that the applicant had no difficulties in obtaining his passport and collected it personally on or about 8 December 2009. The Tribunal found that the applicant would not have been able to obtain a passport if the government authorities or SLA had any serious adverse interest in the applicant.

13. The Tribunal identified country information upon which it relied to the effect that Sri Lankan authorities are mainly interested in Tamil activists who support the establishment of a separate Tamil state in Sri Lanka. The Tribunal stated that “the authorities do not have an interest in past low level LTTE connections or past conduct but are mainly interested in separatist activities of the diaspora”.

14. Having considered all the country information before it, including the material provided by the applicant’s representative, the Tribunal found that the information indicated that the applicant would not be targeted for harm simply for being a Tamil or a young Tamil male. The Tribunal found that the LTTE no longer existed as an organised force and that former members of the LTTE would have only minimal capacity to exert influence in Sri Lanka.

15. The Tribunal noted that the applicant’s parents, brother-in-law and niece returned to Sri Lanka in May 2013 and resumed residence at their family home. The Tribunal stated that despite claims of the applicant’s father and brother-in-law being questioned and monitored, the applicant’s family had not suffered any serious harm since they returned, nor is there any evidence to indicate that they had any genuine fears of harm at the time they returned in 2013. The Tribunal found that:

    “As the applicant was not a LTTE cadre, has not been involved in separatist activities in India or Australia and has, at the most, only some marginal and historical connections with LTTE the country information indicates that he would not be of any adverse interest to Sri Lankan authorities”.

16. Accordingly, the Tribunal concluded that the applicant would not be of any adverse interest to the authorities if he were returned now or in the foreseeable future.

17. Given those findings by the Tribunal, even if such a claim of a risk of extortion of the applicant at the hands of army personnel was a claim made and not considered by the Tribunal, in my view, the Tribunal’s clear and unambiguous findings are such that it is unnecessary to make a specific finding as to a risk of extortion because it is subsumed in findings of greater generality (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“WAEE”) per French, Hely and Sackville JJ at 604 at [46]-[47]).

18. In relation to Ground 1, Particular (a) above, counsel for the applicant submitted that the Tribunal left open the question of whether there was a perception of the applicant’s family being a “Tiger family” on the basis of the applicant’s relationship to deceased cadres, including the applicant’s brother. Counsel for the applicant put the submission as follows:

    “The Tribunal’s failure to consider whether the applicant’s family was indeed perceived as a “Tiger family” and whether the informants who he said were active in the area before he left Sri Lanka remained active, left open the consequent question of whether his presence in Sri Lanka may be brought to the attention to the army and whether he may be subjected to arbitrary arrest and what may delicately called ‘mistreatment’ because of that perception. Being brought to the attention of the army would also, on the evidence before the Tribunal, increase the chances of the applicant being the victim of extortion.”

1. True it is, that the Tribunal must consider all claims made (see Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as he then was) at [42]). Counsel for the applicant submitted that the Tribunal failed to consider whether the applicant may face persecution or significant harm because of the perception of his family as a “Tiger family” and whether informants remain operative.

2. The first respondent contends that there was no failure to consider the applicant’s claims that there were Tamil civilians near his family farm that were army informants and that the applicant’s family was known as a “Tiger family”.

3. The reference to the applicant’s family as a “Tiger family” is made in the applicant’s representative’s submission, dated 20 May 2014, under a heading “Brief Account of Background Facts relevant to Applicant’s Claims”. That background was described as follows:

   “As farming was the family vocation, during his schooling days (after school hours) and after leaving school the applicant took up to farming of which he was very much fond of. The farm was located in Murippu in Kumulamunai. During this time the LTTE cadres used to come and simply take away as much produce as was needed by them without payment. Very often the family gives the cadres cash contribution too whenever asked for. Sometimes they ask for food parcels which too are provided. At that time there were a number of Tamil civilians in the vicinity who acted as informants to the army and the family of the applicant was noted as a ‘Tiger family.’ The applicant would have been forcibly conscripted by the LTTE but was spared (except for the one month’s training referred to in para 6 above) because under their rules, conscription is not enforced on a Maveerar Kudumbam (Family), In addition, the applicant was the last remaining male child of the family.”

4. There is no other articulation by the applicant or his representative of a claim to fear harm in terms of Ground 1 Particular (a), namely, that there were many informant families in the area that the applicant had lived and that the applicant’s family was perceived to be a “Tiger family” thereby placing the applicant at risk.

5. The applicant’s representative’s submission, in which the reference to being a “Tiger family” was made, formed part of the background information and was specifically referred to by the Tribunal in its decision record. The Tribunal referred to the applicant’s representative’s later submission specifically referring to the applicant’s representative’s submission that “the LTTE cadres took produce and that the family gave them food parcels and money. He claimed that there were many informant families in this area and the applicant’s family were perceived to be a “Tiger family””.

6. The Tribunal also referred to the applicant’s submission that “LTTE cadres would come to the farm and take whatever produce they needed without payment. His family also would make cash contributions and were known as an LTTE family by others in the area. The applicant also claimed that he provided food to the cadres through his uncle Brigadier Balraj”.

7. The Tribunal noted that it had “considered the applicant’s representative’s submissions carefully and where appropriate referred to them in this decision”. The Tribunal’s decision is peppered with various references to the applicant’s claims of assistance to the LTTE by providing vegetables and food.

8. As stated above, the Tribunal accepted that the applicant and his family generally lived in Mulliyawalai until October 2008 and accepted that the family owned a farm in Kumulamunai and that the applicant worked there from time to time. The Tribunal accepted that the country information indicated that those areas were controlled by the LTTE for some periods during the civil conflict and that there was country information to indicate that the Sri Lankan army had captured the township of Mulliyawalai in December 2008.

9. The Tribunal also accepted country information before it that indicated that the army was engaged in fighting in the Kumulamunai area in December 2008. Those findings led to the following consequential findings by the Tribunal:

   “49. As the Tribunal accepts that the applicant’s home and farm were in areas controlled by the LTTE up to 2008 it accepts his claim that LTTE cadres would sometimes come to the farm and take produce without making any payment. This evidence is plausible and consistent with country information on the conduct of the LTTE during the civil conflict. The applicant’s representative also claimed that the family provided money and food parcels to the LTTE, vegetables and crops and did not pay a tax to the LTTE and the Tribunal considers that this is the extent of support provided by the family to the LTTE.”

10. As stated above, the Tribunal accepted that the applicant’s family provided assistance to the LTTE whilst on the farm, but found the applicant’s links to the LTTE to be “marginal”. In particular, as stated above, the Tribunal found that the applicant had been released after interrogation in December 2009 by the army “because he was of no further interest” to the authorities.

11. The Tribunal found that, as referred to above, the applicant was able to depart Sri Lanka to India legally via Colombo which it found indicated that Sri Lankan authorities had no adverse interest in the applicant at that time. The Tribunal found that if the applicant was not of interest to the authorities in 2010, then he would not be of adverse interest in 2016 at the time of the Tribunal’s decision.

12. The Tribunal referred with great specificity to country information before it to the effect that the security situation in Sri Lanka had improved, including for perceived supporters of the LTTE. As stated above, the Tribunal also had regard to the fact that the applicant’s family had returned to live in the family home and not suffered any serious harm since returning.

13. I accept the first respondent’s submission that the Tribunal’s findings deal with any perceived links the applicant has to the LTTE and whether he is of adverse interest to the authorities for that or any other reason. As stated above, the Tribunal did not accept that the applicant was at harm now or in the reasonably foreseeable future for any of the reasons advanced by the applicant.

14. I am not satisfied that the applicant made a specific claim of a fear of harm as a member of a family known as a “Tiger family” as distinct from being a member of a family who gave support to the LTTE. As stated above, the reference to being a “Tiger family” was contained in background material only, provided by the applicant’s representative.

15. Otherwise, the Tribunal dealt comprehensively with the applicant’s claims to fear harm by reason of his family’s affiliations with the LTTE.

16. The Tribunal’s comprehensive consideration of the applicant’s claims arising from his familial connections and support to the LTTE are findings of greater generality which subsume the need for the Tribunal to make an express finding about whether his family was known as a “Tiger family” in 2008 (see WAEE above).

17. I do not accept that a claim was raised of a fear of harm as a member of a “Tiger family” as a separate claim distinct from a claim to fear harm because of family links to the LTTE, which required a separate determination by the Tribunal.

18. In particular, the Tribunal referred to the applicant’s assertion on several occasions that he has never been a member of supporter of the LTTE. The Tribunal accepted that assertion. The Tribunal then noted that the applicant claimed that he feared that his family links to the LTTE and his month training would bring him to the notice of the Sri Lankan authorities.

19. I accept the submission of counsel for the first respondent that the reference to “family links” by the Tribunal, fairly read, is a reference to the applicant’s family being a “Tiger family”. The Tribunal then specifically stated that, “Taking into account the country information set out above the Tribunal does not accept that the applicant will face a real chance of persecution for reasons of his imputed political opinion arising from his training with the LTTE or his family links to the LTTE”.

20. Moreover, in light of the Tribunal’s comprehensive consideration of the applicant’s family’s LTTE links, even if the Tribunal should have made a specific finding about whether the applicant’s family was a Tiger Family, such an error is not material and would have made no difference to the Tribunal’s conclusion that the applicant is not at risk of harm if returned to Sri Lanka for any reason. (See Hossain v Minister for Immigration and Border Protection& Anor [2018] HCA 34 per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45]-[47] per Bell, Gageler and Keane JJ).

21. In addition, I do not accept the applicant’s further submission that if the applicant did not live at the farm between 2008 and 2014, then there was no chance to inform on the applicant during that period and that it was therefore irrelevant that the applicant was not of interest to the authorities in 2010. The Tribunal noted the applicant’s representative’s submission that the applicant fitted into a different profile to his parents and brother-in-law and that he would face a real chance of harm if he returned due to his different profile. However, the Tribunal did not find that his profile was sufficiently different from that of his brother-in-law that the applicant was at a risk of harm different to that of his parents and brother-in-law.

22. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

23. Otherwise, the findings of the Tribunal were open to it on the evidence and material before it and for the reasons it gave. The Tribunal’s findings were based on rational grounds and arrived at after considering those grounds that were logically probative of the issues before it and were not tainted by any failure to afford procedural fairness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). The Tribunal identified with specificity all claims made by the applicant and considered all the material and country information placed before it by the applicant. In the circumstances, the Tribunal’s findings were based on the applicant’s written and oral evidence and the Tribunal’s assessment thereof. The reasons that the Tribunal gave for its findings were detailed, comprehensive and extensively referred to the material before it. They did not overlook any relevant material.

24. Accordingly, the Grounds of the application are not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 23 July 2020