BWX15 v Minister for Immigration

[2017] FCCA 117

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWX15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 117

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – refusal of a Protection (class XA) visa – no jurisdictional error – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 5

Cases cited:

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigrations & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant: BWX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2126 of 2015

Judgment of: Judge Hartnett

Hearing date: 3 November 2016

Delivered at: Melbourne

Delivered on: 25 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Khorn

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondents: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2126 of 2015

BWX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a non-citizen of Australia who applied to the First Respondent for a Protection visa (‘the visa’) on the basis that he was a person in respect of whom Australia owed protection, either as a refugee under the Refugees Convention (‘the Convention’), or as a complementary protection, under the Migration Act 1958 (Cth) (‘the Act’). A delegate of the Minister refused that application.

2. The Applicant then applied to the Refugee Review Tribunal (as it then was) (‘the Tribunal’) for review of the delegate’s decision.

3. The Tribunal affirmed the delegate’s decision. It is this decision by the Tribunal made on 21 August 215 which is the subject matter of the present application to the Court. The Applicant seeks an order that the decision of the Tribunal be quashed and that writs directed to the Tribunal issue, requiring it to redetermine the Applicant’s application according to law.

4. The Applicant filed his application for judicial review on 15 September 2015. The Applicant filed an amended application for judicial review on 20 October 2016 together with an outline of submissions in which the Applicant says he pressed grounds two and six of the amended application only. Those grounds plead, respectively, that the Tribunal committed jurisdictional error by:-

   a)making findings that were unreasonable and/or without sufficient evidence the particulars of which are:-

   “(2)… The Tribunal noted the Department of Foreign Affairs and Trade (‘DFAT’)Country Report- Sri Lanka (16 February 2016), and said:

   ‘The DFAT country report referred to above provides that there is no difference in the return of deportees or returnees whether they are Singhalese, [sic] Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. I have considered the country information submitted by the agents but I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government.’

   This ‘country information’ from DFAT could not reasonably be regarded as basis [sic] for rejecting the Applicant’s claim to have a well founded fear of suffering persecution by torture or mistreatment because:-

   (a) ‘DFAT does not routinely monitor the situation of returnees’

   (b) ‘the country information submitted by the agents’  included:

   (i) a report of Australian official inaction in Colombo when a  report of torture was made;

   (ii) an opinion of why ‘one could not say that nothing happened simply because nothing was reported’;

   (iii) a decision by the Refugee Review Tribunal in another matter about the situation of returnees to Sri Lanka and which gave reasons why it was ‘inappropriate to be sanguine’  about the situation of a person returned to Sri Lanka;

   (iv) a report by the Bar Human Rights Committee of England and Wales on 40 sworn statements of witnesses relating to abduction, detention and torture including detention after return to their home areas of Sri Lanka;

   (v) a report by Amnesty International, quoted by the Immigration and Refugee Board of Canada, to the effect that:

   ‘the government of Sri Lanka has a history of arresting and detaining rejected Sri Lankan asylum seekers on their return and we aware [sic] of cases of people being tortured’;

   (vi) a Freedom from Torture report in October 2014 to the UN Human Rights Committee referring to documented torture of individuals, and saying that:

   ‘This evidence indicates that the risk of torture for Sri Lankan Tamils returning from the UK… has not diminished and may be increasing’

   (vii) a Freedom from Torture report cited by UK authorities which detailed medico-legal reports of torture of 35 asylum seekers returned to Sri Lanka between May 2009 and early 2011, which covered not only the situation of returnees at the airport, but also in the days, weeks, months and years after return.”

   b)by failing to take into account relevant considerations in the form of the Applicant’s claims, integers of claims, particular facts and information, the particulars of which are:-

   “(6)(a) The Tribunal considered that the Applicant would return as a person who left Sri Lanka legally so ‘that the illegal departure laws are not applicable to him’, but did not consider whether he would face a risk of special scrutiny and consequent ill-treatment or harm, whether at the airport or later, because:-

   (i) he would be returning over ten years after his departure from Sri Lanka;

   (ii) he would not have his passport with him to show that he departed legally, and there was no evidence about whether there would still be a record of his legal departure from Sri Lanka which the Sri Lanka government would have or accept;

   (b) The Tribunal said:

   ‘that when he [the Applicant] returns to his home area, there is a real chance that he will [be] contacted at his home by the military or the police for further registration. I do not consider such treatment amounts to either serious harm or significant harm…’

   but the Tribunal did not consider whether during or after such contact the Applicant may suffer mistreatment or harm, although that was a claim explicitly raised by the reports before the Tribunal. 

5. The First Respondent submitted that the amended application should be dismissed with costs.

History

1. The Applicant is a 53 year old Tamil from the Northern Province of Sri Lanka and is of Hindu faith. He arrived in Australia by boat as an unlawful non-citizen on 9 August 2012, and was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (‘the Department’) on 2 September 2012.

2. The Applicant applied for the visa on 16 January 2013 and provided various documents in support. In a statutory declaration dated 14 January 2012 (but which appears should have been correctly dated 14 January 2013), and attached to the visa application, the Applicant claimed to be a refugee for the following reasons as accurately summarised by Counsel for the First Respondent:-

   a)the region in which the Applicant was born, Killinochichi, was controlled by the Sri Lankan army until about 2000 when it was captured by the Liberation Tigers of Tamil Eelam (‘LTTE’). The area remained under LTTE control until the end of the civil war in 2009;

   b)from the age of 18, the Applicant worked on his family farm in Killinochichi. During this time the LTTE tried to force the Applicant to joint them as their cook, but his parents did not allow him to join for fear that he would be killed;

   c)in response to the harassment of the LTTE, the Applicant moved away to Batticaloa in 1996 and purchased a van which he then rented out. An armed Tamil group subsequently tried to take his van on two or three occasions by coming to his house and threatening them. He did not know who this Tamil group was. He therefore sold his van and left for Saudi Arabia where he remained between the years 2000 and 2006, save for a two month trip home every two years;

   d)upon returning to Sri Lanka permanently in 2006, four armed men with covered faces came to the Applicant’s home. The men demanded payment from the Applicant because he was perceived to be rich, having worked in Saudi Arabia. The men fled after the Applicant’s neighbours were alerted. The next day the Applicant left for Colombo with his brother-in-law to make arrangements to flee the country, while his wife notified the police. The Applicant fled to Thailand on 6 February 2006 and, after two months, onto Malaysia;

   e)in 2009 the Applicant’s home village was bombed. His mother, father and siblings travelled to a refugee camp in Vavuniya, but his mother was killed by a bomb along the way. His family returned to their village three to four months later. The Applicant’s wife and daughter remained living in Batticaloa;

   f)in May 2012 the Applicant went to Indonesia to make arrangements to travel to Australia. He departed Indonesia for Australia on 7 August 2012;

   g)having regard to the above matters, the Applicant’s main fear of serious harm is from ‘various terrorist groups operating in Sri Lanka, as well as the LTTE and the Sri Lankan authorities’. The Applicant says the terrorist groups will target him because he will be perceived as rich on account of having worked overseas. He says the Sri Lankan authorities will target him for leaving the country unlawfully, and for having sought asylum in Australia;

   h)the Applicant says that he cannot return to his family who now live in Vanni as the LTTE may try to force him to join them again. He also fears that he will be targeted and killed for failing to comply with the demands of the groups who have harassed him in the past. Further, he says he cannot relocate anywhere within Sri Lanka because, as a Tamil, he would have problems living in Singhalese [sic] areas where he would be in the minority and be ‘sent away’. He believes the Sri Lankan authorities kill Tamil people and therefore cannot protect him.

3. The Applicant attended an interview with a delegate of the Department on 14 October 2013 where he repeated the claims contained in his statutory declaration. The delegate refused the Applicant’s visa application on 26 March 2014.

The Tribunal

1. On 28 March 2014, the Applicant applied to the Tribunal for review of the delegate’s decision.

2. In further submissions of 19 August 2015, the Applicant’s solicitor and migration agent set out an overview of the Applicant’s protection claims relevantly as follows:-

   “We submit that there is a real chance that [the Applicant] would face serious harm from the Sri Lankan authorities and/or paramilitary groups in Sri Lanka on account of the following Refugees Convention grounds, taken either individually or cumulatively:-

   (a) his Tamil ethnicity; and/or

   (b) his actual and/or imputed political opinion in support of the LTTE and/or his actual and/or imputed political opinion against the Sri Lankan authorities and/or paramilitary groups on account of his:

   (i) Tamil ethnicity;

   (ii) origins as from Killinochichi, Northern Province;

   (iii) departure from Sri Lanka and claim for asylum in Australia;

   (c) his membership of a particular social group, ‘wealthy Tamils who worked overseas’; or

   (d) his membership of a particular social group, ‘returned failed Tamil asylum seekers’.

   It is further submitted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk that he would suffer significant harm, as defined in s36(2A) of Migration the Act 1958 (Cth) (‘the Act’) for the purposes of s36(2)(aa). There is a real risk of the following forms of significant harm:-

   (a) torture; and

   (b) cruel and inhuman treatment or punishment; and

   (c)degrading treatment or punishment.”

3. Additionally, considerable ‘country information’ was provided within the written submission of 19 August 2015.

4. The Applicant appeared before the Tribunal on 21 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The Applicant was represented in relation to the review by his solicitor and migration agent.

Tribunal Findings

1. The Tribunal found the Applicant to be a national of Sri Lanka for the purposes of the Convention and that this country was his receiving country under s.36(2)(aa) and s.5 of the Act.

2. The Tribunal made the following relevant findings in response to the claims made by the Applicant, including those arising obviously on the material before it as set out in the Decision Record in the following paragraphs:-

   “(27) …that when the Applicant was young, the LTTE made attempts to recruit him and that his parents moved him away from his home area. I further accept that in 1999, the LTTE made requests for him to give them his van and threatened him. I accept that  fearing that the army would blame him he sold it and obtained a work visa to live in Saudi Arabia. The Applicant has been consistent with these claims and it accords with country information of the LTTE forcibly recruiting Tamils and requiring them to give them assistance prior to the ending of the war;

   (28) However, as put to the Applicant at the hearing, these incidents occurred a very long time ago. Furthermore, authoritative and recent information from DFAT is that most of the LTTE’s military and political leadership were killed during conflict (which ended in May 2009) and that they assess that the LTTE does not exist as an organised force and any former LTTE members within Sri Lanka would only have a minimal capacity to exert influence on civilians or those returning. The Tribunal has no information before it that contradicts this. Given the country information and his individual circumstances, I find that the chance or risk that he will be seriously or significantly harmed in the reasonably foreseeable future at the hands of the LTTE is remote.

   …

   (30) I do not accept that the occurrence of (an extortion attempt) in 2006 means that now or in the reasonably foreseeable future that the Applicant faces a real chance or real risk of serious harm or significant harm (including extortion) at the hands of any actor within Sri Lanka for the following reasons:-

   - The incident occurred a long time ago and other than these men in a short period after it, on a couple of occasions asking the Applicant’s wife about his whereabouts, there has been no other contact by them with the Applicant’s wife and family and no threats to his family. This indicates a lack of ongoing continuing adverse interest in him.

   - The applicant is unsure if the men were from the LTTE. If they were, country information indicates that the LTTE does not exist as an organised force and any former LTTE members within Sri Lanka would only have a minimal capacity to exert influence on civilians or those returning.

   - The applicant is unsure who the men were or who they were with. I have had regard to the reports contained in the agent’s submissions and I accept that Tamil paramilitary groups such as the Eelam People’s Democratic Party (EPDP) or the Tamil Makkal Viduthalai Pulikal (TMVP) are still active, linked with the government and engaged in extortion and human rights abuses. However, authoritative country information from DFAT is that the number of incidents of extra-judicial killing, disappearances and kidnappings for ransom has fallen considerably since the ending of the conflict in 2009. They also reported that whilst there have been incidents of kidnapping for ransom, that no particular group has been the target of these attacks and they do not appear to be ethnically-based. This information reduces the risk he will again be targeted by these groups.

   - Whilst it has been submitted that the applicant is at risk due to his membership of a particular social group of ‘wealthy Tamils who worked overseas’,  I consider that the chance or risk that he will be seriously or significantly harmed for this reason (or the imputation of this reason) is remote. The Applicant told the Tribunal that he had no assets in Sri Lanka which reduces the chance he will be viewed as wealthy. Furthermore, country information does not support that such a group faces a real chance of persecution and significant harm, given the very large numbers of Sri Lankans working abroad and the lack of information that they are being targeted for harm upon return. DFAT have stated that more than 250,000 Sri Lankans leave every year to seek employment abroad and as of 2013 a total of more than two million Sri Lankans were working abroad.[1] I have also taken into account that DFAT reports and the UNHCR Eligibility Guidelines for Sri Lanka do not make mention of such a group as having been targeted or of having a specific risk profile.”

   [1] Department of Foreign Affairs and Trade, DFAT Country Report, Sri Lanka at 2.24, 16 February 2015.

3. The Tribunal then proceeded to set out the country information considered by it in particular as to the position of ‘Tamils’ and said as follows:-

   “(34) The Australian Department of Foreign Affairs and Trade (DFAT) has recently stated:

   (2.37) The security situation in the north and east has greatly improved since the end of the military conflict. With the cessation of fighting, the humanitarian situation in these areas has also improved. The end of the conflict has allowed reconstruction to occur, including the repair of the main highway, railway and ports linking northern Sri Lanka to the rest of the country.  In turn, this has helped to reduce the cost of transport and of basic goods in northern Sri Lanka.

   …

   (3.5) Overall, DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity  or language (‘official discrimination’) including in relation to access to education, employment or access to housing. DFAT further assesses that there is only a low-level discrimination in the implementation of laws and policies. More generally, there is a moderate level of discrimination between particularly ethnic groups (‘societal discrimination’), largely as a result of the civil conflict and its cause.

   …

   (3.12) However, the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. According to the United Nations’ High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation 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’.

   (35) Country information set out above indicates a generally improved situation for Tamils since the ending of the war in 2009 with the UNHCR stating that there was no longer a presumption of eligibility for Tamils. DFAT have stated that monitoring and harassment of Tamils in day to day life has generally eased since the ending of the conflict. DFAT have stated that there are no laws or policies that discriminate against Tamils on the basis of their race, including in relation to access to education, employment and housing. DFAT further assesses that there is only a low-level of discrimination in the implementation of laws and policies. More generally, there is a moderate level of discrimination between particular ethnic groups (‘societal discrimination’), largely as a result of the civil conflict and its causes.

   (36) I have considered the country information reports referred to by the applicant’s agents. However, in making my assessment, I have given substantial and greater weight to the assessment by the UNHCR in its eligibility guidelines as to the circumstances for Tamils as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka. I have also given substantial and greater weight to the information from DFAT as it is recent and because it is an authoritative source and they have been specifically charged with the provision of such information to the Australian government.

   (37) I have taken into account that DFAT have indicated that there is a moderate level of societal discrimination between particular ethnic groups but considering his individual circumstances and the country information as a whole, I find the chance or risk that the applicant will be persecuted or significantly harmed on account of being a Tamil who originates from the north is remote.

   (38) In making these findings, I do not consider that there is a real chance or risk that the applicant will be imputed as having a pro-LTTE opinion by authorities, paramilitary groups or anyone else. The applicant has not claimed to have assisted the LTTE in any way or that any of his family members have been involved with them. He had not claimed that he was targeted or harmed by any actor on suspicion of being linked to the LTTE. I accept that members of his family had to go to a refugee camp in Vavuniya in 2009 due to their houses being destroyed and that his mother and another family member were killed getting there. However, his family members who went to the camp were released after 3-4 months and returned to their village.”

1. In respect of the ‘Hindu claims’ of the Applicant the Tribunal found:-

   “(42) I consider the country information from DFAT authoritative and recent and have taken into account that the Applicant has not claimed to have in the past been restricted from practising his religion. The Applicant told the delegate that being a Hindu was a reason he was targeted in 2006 but on his evidence I find that the reason for the attempted extortion was due to financial gain and I consider it completely speculative that he was targeted for reasons of his religion. In making this finding, I have taken into account that DFAT have reported that no particular group has been the target of incidents of kidnapping for ransom.”

2. In respect of the Applicant’s membership of a particular social group ‘Tamil failed asylum seeker’ claim, which forms the basis of ground two of the amended application, the Tribunal rejected such claim and did so on the basis of the DFAT country information referred to by it; information provided by the Applicant himself that he departed Sri Lanka lawfully; and on the basis of the Tribunal’s finding that the Applicant did not face a real chance of persecution at the hands of the groups who had allegedly targeted him in the past.

3. The Tribunal carefully set out some of that ‘country information’ on which it relied in paragraphs 45 to 48 of its Decision Record as follows:-

   “(45) DFAT have recently reported:

   Torture or mistreatment of returnees

   4.20 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.

   4.21 However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, but  relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This is due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.

   …

   Treatment of Returnees

   5.22 Article 14(1)(i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act. Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).

   5.23 Returnees are generally considered to have committed an offence under the  Immigrants and Emigrants Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the Immigrants and Emigrants Act.

   Exit and Entry Procedures

   5.24 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS)and the Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returnees eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.

   5.25 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.

   5.26 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion- Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.[2]

   (46) The DFAT country information referred to above provides that there is no difference in the treatment of deportees or returnees whether they are Singhalese, [sic] Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. I have considered the country information submitted by the agents but I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government.

   (47) I note that a number of the sources referring to harm to returnees highlight the significance of an actual or suspected affiliation with the LTTE. Freedom from Torture has reported that an actual or perceived association with the LTTE was a factor placing individuals at risk of torture and inhuman and degrading treatment. It described Tamils with an actual or perceived association with the LTTE, including those returning from abroad, as being at particular risk.[3] This aspect of the information is consistent with advice from sources such as the UNHCR concerning those with actual or perceived links to the LTTE.

   (48) I accept that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka and that this also applies to people with such a profile who have returned to Sri Lanka from abroad. Having regard to all of the information on the treatment of returnees, I am not satisfied that returnees generally are regarded as having links with the LTTE or being opposed to the government simply because they have been in Australia. I do not accept that returnees generally or returnees who have been in western countries are seen as having links to the LTTE. I have had regard to the Applicant’s claims, but I do not accept that, if he were to return to Sri Lanka, the authorities would regard him as a supporter of the LTTE or someone with links to the LTTE.”

   [2] Department of Foreign Affairs and Trade, DFAT Country Report, Sri Lanka, 16 February 2015.

   [3] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2 <

Ground Two

1. The country information relied upon by the Tribunal provided “an evident and intelligible justification” on which to reject the Applicant’s claim. [4] It cannot be said therefore as submitted by Counsel for the First Respondent that the Tribunal acted unreasonably by relying on this information.

   [4] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 76 per Hayne, Kiefel and Bell JJ, 105 per Gageler J; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 135 per Crennan and Bell JJ.

2. The Tribunal properly considered the Applicant’s claims by assessing the country information before it as provided to it by the Applicant, and assessing the country information preferred by the Tribunal, and engaged in a cogent process of weighing the evidence.[5] The question of the accuracy of the DFAT country information, as opposed to the accuracy of the country information submitted by the Applicant’s representative, was for the Tribunal to determine. It is not for the Court to make its own assessment as to which of the country information is to be preferred.[6] That would be merits review which is not the function of the Court.

   [5] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 39, 45, 50.

   [6] NAHI v Minister for Immigrations & Multicultural & Indigenous Affairs [2004] FCAFC 10, 11.

Ground Six

1. The Tribunal was clearly aware that the Applicant had been absent from Sri Lanka for a considerable period. It considered in detail the claims of the Applicant and rejected them, in the process making findings on material facts. In that consideration the Tribunal expressly referred to country information concerning returnees travelling on ‘temporary travel documents’, as set out in paragraph 18 herein and being pertinent to the Applicant.

2. As submitted by Counsel for the First Respondent, the Tribunal’s finding that the Applicant would not face serious or significant harm upon his return to his home area despite likely being contacted by the military or police, was not confined in time. It was a broad based finding. The Applicant’s contention that the Tribunal failed to consider whether the Applicant would face such harm after this initial contact is not accepted by the Court.  

3. Having regard to the above findings, the Tribunal found that the Applicant did not meet the criteria contained in s36(2)(aa) of the Act.

4. No jurisdictional error attends the decision. The application is dismissed. Costs will follow the event.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  25 January 2017