BXP17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 877
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BXP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 877
File number: MLG 905 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 2 October 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a protection visa – whether Tribunal made finding for which there was no evidence – whether Tribunal erred in its assessment of whether applicant faced a real chance of harm in the reasonably foreseeable future – whether Tribunal failed to consider a claim raised by applicant – whether Tribunal decision was affected by apprehended bias – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 45AA, 425, 438, 476, 477
Migration Regulations 1994 (Cth) reg 2.08F
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49; [2010] FCA 21
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 5 September 2023 Place: Perth Applicant: In person Counsel for the First Respondent: Ms K Hooper Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 905 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the delegate’s decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 10 April 2017. The applicant now seeks judicial review of the Tribunal decision, invoking the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The application raises two grounds which allege that the Tribunal decision is affected by jurisdictional error because:
(a)there was no evidence for the Tribunal’s finding that the applicant’s uncle was not involved in a Tamil political party; and
(b)the Tribunal conflated the applicant’s claim to have been abducted in the past with country information concerning the risk of harm to Tamil returnees from western countries.
I have considered the two grounds raised by the applicant, as well as further matters raised by the applicant at the hearing and, for the reasons explained below, I find that the applicant has not established jurisdictional error in the Tribunal decision. The application to this Court is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant entered Australia in August 2012 and applied for a Protection (Class XA) visa on 10 April 2013. A decision was not made in relation to his application prior to the commencement of reg 2.08F of the Migration Regulations 1994 (Cth) (Regulations). By operation of reg 2.08F of the Regulations and s 45AA of the Migration Act, the applicant’s valid application for a Protection (Class XA) visa, which is a permanent protection visa, was taken to be a valid application for a Temporary Protection (Class XD) visa. The delegate and the Tribunal both correctly recognised this.
The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant claimed to fear harm on the basis of his Tamil ethnicity and imputed political opinion. He claimed that he had suffered harm in the past, including that:
(a)he was taken in a white van in 2009, detained for approximately one week until his father paid a ransom, and tortured during the time he was detained; and
(b)in 2012 he was bashed by members of the Sri Lankan military who attended his house on multiple occasions looking for his uncle.
On 11 December 2015 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.
The applicant then made an application to the Tribunal for merits review of the delegate’s decision. The applicant attended a hearing convened by the Tribunal on 30 March 2017 to give evidence and present arguments in relation to his claims for protection.
On 10 April 2017 the Tribunal affirmed the delegate’s decision.
SUMMARY OF TRIBUNAL DECISION
The Tribunal accepted that in March 2009 the applicant was abducted by several men in a white van and held for a week until his father paid a ransom that had been demanded. The Tribunal accepted that the applicant was beaten and deprived of food during the week he was detained.
The Tribunal did not accept the applicant’s claims that he or his family were of adverse interest to the men who abducted him, the army or authorities following the abduction. In reaching this finding, the Tribunal identified a number of inconsistencies in the applicant’s evidence which, in the Tribunal’s view detracted substantially from the applicant’s credibility. Based on the concerns that the Tribunal had about the applicant’s credibility, the Tribunal did not accept that after the applicant was released he went to hide in a coconut plantation. The Tribunal did not accept that the abductors, the army, the authorities or anybody else went to the applicant’s family home and asked for the applicant’s whereabouts and tortured his family. The Tribunal did not accept that there was a second kidnapping attempt on the applicant after he returned home and did not accept that the applicant rarely went outside and was not able to continue his studies.
The Tribunal did not accept the applicant’s claim that on nine occasions people came to his house seeking information about his maternal uncle or that the applicant or his family members were beaten on these occasions. The Tribunal did not accept that the applicant’s uncle was involved in a Tamil political party.
The Tribunal considered that the chance or risk that the applicant would again be abducted for ransom or subjected to serious harm or significant harm from his previous abductors or anybody else was remote, taking into account that the applicant resided at his home and worked in the area for three years after the incident and, on the Tribunal’s findings, was not the subject of any further attention from the abductors or anybody else during that period.
The Tribunal also considered claims raised by the applicant at the hearing that he had problems with Muslim employees in the workplace, who had made derogatory comments about him, teased him, took money from his salary and, on one occasion, stopped him from attending the temple. The Tribunal was willing to accept that the events occurred but found that even considered on a cumulative basis the treatment did not constitute serious harm or significant harm to the applicant.
The Tribunal considered information from the applicant about a person who volunteered at a temple and who was physically assaulted. The Tribunal did not consider that the assault of that person meant that the chance or risk of the applicant being seriously harmed or significantly harmed by Buddhists at this temple was more than remote. The Tribunal took into account that only one person at the temple was assaulted, the applicant never claimed that he had been targeted by Buddhists in the past, and the assessment by the Department of Foreign Affairs and Trade (DFAT) that most members of religious groups in Sri Lanka are able to practise their faith freely.
The Tribunal considered country information regarding the treatment of Tamils in Sri Lanka and found that the risk or chance that the applicant would be persecuted or significantly harmed on account of being a Tamil was remote. The Tribunal considered the applicant’s personal circumstances and did not accept that there was a real chance or risk that he would be imputed with any pro-LTTE political opinion.
The Tribunal accepted that the applicant may be questioned by the authorities upon his return to Sri Lanka, may have to attend registration interviews upon return to his home area and may be monitored, but did not consider that this treatment would amount to serious harm or significant harm. Largely relying on DFAT information, the Tribunal found that the applicant would not face a real chance of serious harm or a real risk of significant harm as a result of being a failed Tamil asylum seeker returning from a western country.
The Tribunal accepted that the applicant departed Sri Lanka illegally. The Tribunal found that the treatment the applicant would expect to face as a result of breaching the Immigrants and Emigrants Act (Sri Lanka) would not amount to serious harm or significant harm.
Based on these findings, the Tribunal concluded that the applicant did not meet the criteria for a protection visa in s 36(2)(a) or s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 4 May 2017, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant raises the following two grounds in the application:
1.There was no evidence for the Second Respondent’s finding that the Applicant’s uncle was not involved in a Tamil political party at paragraph 29 of the Tribunal’s decision;
2.The Tribunal fell into error by conflating the Applicant’s claim to have been abducted with the country information concerning Tamil returnees from Western countries, and using this country information to dismiss the risk of harm to the Applicant at paragraph 30.
The application was accompanied by an affidavit deposed by the applicant, which annexes a copy of the Tribunal decision. The only other evidence before the Court is the court book filed on behalf of the Minister on 6 December 2017.
On 22 November 2017 a Registrar of this Court made an Order which, amongst other things, required the applicant to file and serve any amended application, any supplementary court book and written submissions 28 days before the final hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions on 22 August 2023.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicant to be entitled to relief, he must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
As I explained to the applicant at the hearing, the Court does not consider whether he meets the criteria for a protection visa and the Court cannot grant him a visa. The Court has no power to review the factual merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
MATTERS RAISED IN APPLICANT’S ORAL SUBMISSIONS AT THE HEARING
At the hearing, the applicant was given an opportunity to make submissions on the grounds raised in his application and any other jurisdictional error that he might have identified in the Tribunal decision. The applicant raised four main points in his submissions which might be seen as allegations of jurisdictional error.
First, the applicant submitted that he told the Tribunal about his claims relating to his uncle, but the Tribunal did not take notice of these claims. In response, Counsel for the Minister submitted that the Tribunal expressly considered and rejected the claims regarding the applicant’s uncle at [27]-[29] of its reasons.
The Tribunal summarised the applicant’s claims relating to his uncle at [23] of its reasons, where it said:
On nine occasions people came to the applicant’s house seeking information about his maternal uncle. They beat him and his family whilst asking about the uncle. His uncle was involved in a Tamil political party. In February 2012, members of the military attended the applicant’s house to enquire about his maternal uncle’s whereabouts. He and his father did not know the whereabouts of the uncle and he and his father were bashed. They attended the house again and beat him, his father and mother. His father decided he should flee Sri Lanka. After he did, the army came to the house again and questioned and harmed his family to find out information about the uncle. He fled Sri Lanka in mid-2012 and later his family then fled to India.
I have addressed the applicant’s claims regarding his uncle in further detail in the consideration of ground 1 below. For present purposes, it is sufficient to note that I have reviewed the information in the court book about how the applicant articulated his claims in relation to his uncle, specifically in the statement he provided with his protection visa application and in his submission to the Tribunal, and I am satisfied that the Tribunal’s summary of the claims at [23] accurately reflects the claims as advanced in the applicant’s written statement and submission to the Tribunal. There is no evidence, such as a transcript, or other record before me as to what, if anything, the applicant said about his claims regarding his uncle at the Tribunal hearing.
The Tribunal considered the applicant’s claims regarding his uncle at [27]-[29] of its reasons and rejected those claims in their entirety, based largely on inconsistencies it identified in the applicant’s evidence. In circumstances where the Tribunal clearly identified, considered and rejected the relevant claims, it cannot be said that the Tribunal overlooked the claims or otherwise took no notice of them. The applicant’s assertion that the Tribunal overlooked his claims about his uncle does not establish jurisdictional error.
Second, the applicant expressed concern that during the hearing the Tribunal member smiled. The implication inherent in this submission is that the Tribunal’s members alleged smiling was somehow adverse to the applicant. In response, Counsel for the Minister submitted that there is no evidence before the Court of the demeanour of the Tribunal member at the hearing. Counsel for the Minister further submitted that even if the Tribunal member did smile, that would not be sufficient to amount to jurisdictional error, either by reason of a breach of s 425 of the Migration Act or due to a reasonable apprehension of bias.
I accept the submission advanced on behalf of the Minister that the applicant’s allegation that the Tribunal member smiled does not establish jurisdictional error. I also agree that, in the context in which the applicant’s submission was advanced before the Court, it might generously be interpreted as an allegation that the Tribunal breached s 425 of the Migration Act or that the smile on the part of the Tribunal member gave rise to a reasonable apprehension of bias.
Section 425 of the Migration Act required the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The invitation and opportunity to appear at a hearing must be a meaningful invitation, and not a hollow shell or an empty gesture, and the hearing must be conducted in a manner that is fair: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33], [37], [41]; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 at [75]. The Tribunal clearly invited the applicant to attend a hearing in the present matter, and the hearing record shows that the hearing lasted for over three hours. Even if I were to accept, notwithstanding the absence of evidence, that the Tribunal member smiled in the course of the hearing, that would not of itself establish that the invitation to attend the hearing was not real and meaningful or that the hearing was not conducted in a fair manner. The applicant has not established that the Tribunal breached s 425 of the Migration Act.
Any allegation of bias must be ‘distinctly made and clearly proved’: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]. By simply expressing his concern that the Tribunal member smiled in the course of the hearing, the applicant has not distinctly made or clearly proved any allegation of bias. In any event, to establish that the Tribunal decision is affected by a reasonable apprehension of bias, the applicant would need to demonstrate that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the questions it was required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17] (Kiefel CJ and Gageler J), [56] (Nettle and Gordon JJ), [132] (Edelman J). I am not satisfied that the Tribunal member smiling in the course of the hearing, of itself, might cause a fair-minded lay observer to reasonably apprehend that the Tribunal member might not have brought an impartial mind to his consideration of the applicant’s review application.
No jurisdictional error is established based on the applicant’s assertion that the Tribunal member smiled during the hearing.
Third, the applicant submitted that he was abducted and he told the Tribunal about this claim, but the Tribunal took that claim as a general statement that everybody who goes overseas could be abducted. The applicant was, however, speaking of his own personal experience. In response, Counsel for the Minister submitted that the Tribunal accepted the applicant was abducted in March 2009 and to that extent considered it to be a claim personal to the applicant.
The Tribunal reasons clearly show that it understood the applicant claimed to have personally been abducted in March 2009 and the Tribunal accepted that claim. This is seen most clearly at [26] of its reasons, where the Tribunal said:
The applicant has given consistent and credible evidence concerning the claimed abduction incident. I accept that in March 2009 he was abducted by several men in a white van. I accept that he was severely beaten and had to give them his father’s phone number. I accept that these men contacted his father and demanded money. I accept that the applicant was beaten and deprived of food during the week he was detained and until his father paid the ransom.
The Tribunal also accepted that the treatment the applicant experienced during his abduction constituted serious harm and significant harm.
The task of the Tribunal, however, was not limited to an assessment of whether the applicant had faced harm in the past. In assessing whether the applicant met the criteria for a protection visa, the Tribunal was required to consider whether there was a real chance that the applicant would suffer serious harm or a real risk that the applicant would suffer significant harm in the reasonably foreseeable future. In assessing whether the applicant faced such a risk, it was open to the Tribunal to have regard to country information not specifically about the applicant. The Tribunal in the present case considered country information as well as the applicant’s own personal circumstances and personal experiences. To the extent that the applicant’s complaint is that the Tribunal took into account country information or more general information that was not specifically about him, this does not give rise to jurisdictional error. This is discussed further below in the context of ground 2.
Fourth, the applicant submitted that he was abducted for one month in Sri Lanka, but in his nervousness at the Tribunal hearing, he made a mistake and said he was abducted for a week rather than a month. He submitted that the Tribunal repeatedly emphasised that error despite the applicant apologising for making that error. In response, Counsel for the Minister submitted that although the applicant had referred to his abduction, in raising this issue before the Court, the applicant may have intended to refer to his claim that he had spent time hiding at a plantation. That inconsistency is addressed at [27] of the Tribunal’s reasons and Counsel for the Minister submitted that the Tribunal’s assessment of the inconsistency was reasonably open to it. Counsel for the Minister further submitted that the Court cannot review the merits of the applicant’s factual claims for protection and cannot hear further evidence or explanation from the applicant in relation to that aspect of his claims.
The Tribunal did not identify any inconsistency in the applicant’s claim to have been abducted and accepted that the applicant had consistently claimed that he had been abducted for a week. I accept the submission advanced by Counsel for the Minister that it is more likely that the applicant was referring to the inconsistency that the Tribunal identified about the length of time that he was hiding at a plantation. One of several inconsistencies identified by the Tribunal at [27] of its reasons was that the applicant ‘told the Tribunal he was at the plantation for 1 to 1.5 weeks but in his statutory declaration he said it was for approximately … a month’.
The applicant does not dispute that he told the Tribunal that he was at the plantation for one or one and a half weeks, but rather submitted that it was an error made when he was nervous. It was open to the Tribunal to identify inconsistencies in the applicant’s evidence and take those inconsistencies into account in assessing his claims. Further, the Tribunal took into account the applicant’s explanation that he had forgotten various events as they happened a long time ago and took into account the passage of time and the effects of the applicant’s treatment during his abduction. Even taking into account these matters, the Tribunal considered that the applicant’s inconsistent evidence detracted from his credibility. This finding of the Tribunal was open to it and does not demonstrate jurisdictional error.
I further accept the Minister’s submission that it is not open to the applicant to give further evidence to the Court about his claims and what he meant to say to the Tribunal. In the context of the issues as raised by the applicant, this would amount to the applicant asking the Court to engage in impermissible merits review.
There were other matters raised in the applicant’s submissions that cannot give rise to jurisdictional error in the Tribunal decision. These include a reiteration of the applicant’s claims for protection, which were primarily raised in his reply submissions, and his assertions about difficulties he faces in Australia without a Medicare card and the importance of the Court’s judgment in this matter for him in his life. In circumstances where these matters do not allege any jurisdictional error in the Tribunal decision and, even interpreted generously cannot be seen as giving rise to jurisdictional error, it is not necessary to consider them further.
GROUND 1: DID THE TRIBUNAL MAKE A FINDING FOR WHICH THERE WAS NO EVIDENCE?
By ground 1, the applicant asserts that there was no evidence for the Tribunal’s finding at [29] that his uncle was not involved in a Tamil political party.
At [29] of its reasons, the Tribunal said (emphasis added):
I do not accept that on nine occasions people (the abductors, army, the authorities or anyone else) came to the applicant’s house seeking information about his maternal uncle. I do not accept that they beat him and his family whilst asking about the uncle. I do not accept that his uncle was involved in a Tamil political party. I do not accept that in February 2012 (or at any other time) members of the military or the abductors or anybody else attended the applicant’s house to enquire about his maternal uncle’s whereabouts. I do not accept that he and his father did not know the whereabouts of the uncle and he and his father were bashed. I do not accept that they attended the house again and beat him, his father and mother. I do not accept that after he did, the army came to the house again and questioned and harmed his family to find out information about the uncle or the applicant. I do not accept that his family fled to India due to a concern about their safety. I do not accept that after his abduction in March 2009, the applicant was ever of adverse interest to the abductors, the army, the authorities or anyone else. I do not accept that his family members (including his uncle) were or are of adverse interest to the interest to the abductors, the army, the authorities or anyone else.
It is immediately apparent that the Tribunal reasons at [29] are simply a list or a summary of the claims made by the applicant that the Tribunal did not accept. The Tribunal did not at [29] set out the reasons for those findings. The reasons for the findings at [29] are found elsewhere in the Tribunal’s reasons, including at [27] where the Tribunal identified a number of inconsistencies in the applicant’s evidence and explained why it was not satisfied that the applicant’s claims were credible.
It is convenient to address the Tribunal’s reasons in the context of the claims as advanced by the applicant. The applicant’s claims in relation to his uncle’s involvement in a political party are set out in two places in the court book. The first is in his statement of claims, where he said (emphasis added):
In February 2012, members of the Sri Lankan Military attended our house and asked about my maternal uncle’s whereabouts. They advised us that he had been involved in politics and was supporting a Tamil party. My parents and I did not know anything about the whereabouts of my uncle as we had not been in contact for a long time. The authorities however did not believe that we did not know about his whereabouts and continued to harm us. The first time they attended our house they bashed my father and I. My father’s face was hurt and I received scaring from the incident. The second time they attended our house they also beat my mother as well as my father and I, in an attempt to find out information about my uncle. My father decided that I should flee to ensure my safety. He knew if I remained the mistreatment would continue to escalate. He made arrangements for me to flee to Sri Lanka.
The second document within the court book that refers to the applicant’s claim that his uncle was involved with a political party is a submission provided to the Tribunal on 29 March 2017 and prepared by the applicant’s representative. This submission reads in part (emphasis added):
The Applicant instructs that in February 2012, members of the Sri Lankan Military came to his house asking about his uncle whom was believed to be involved in politics and being in support of a Tamil party. The Applicant nor his family knew the current whereabouts of his uncle as they had not been in contact for a long time, however the authorities did not believe them and proceeding to bash both the Applicant and his father. The second visit to the family home from the authorities also resulted in the beating of the Applicant and his father as well as his mother in an attempt to obtain information about his uncle. The Applicant instructs that the Authorities continuously harassed his family. As a result of this the Applicants father decided it was no longer safe for the Applicant to remain Sri Lanka and made arrangements for him to flee. After the Applicant fled Sri Lanka his family were again approached by the Sri Lankan authorities and questioned and harmed, this resulted in the family deciding they could no longer safely remain in Sri Lanka and as such fled to India. The Applicant instructs that the Authorities have a significant interest in his uncle and therefore have demonstrated a propensity to target him and his family as a means to ascertain information about his uncle. The Applicant believes that he will be further be at risk of harm upon return given his uncle’s political profile.
While none of the inconsistencies identified by the Tribunal at [27] of its reasons directly relate to the narrow question of whether the applicant’s uncle had been involved in a political party, the inconsistencies do relate to the applicant’s claim about the interest in his uncle more generally. In particular, the inconsistencies identified by the Tribunal include that:
(a)The applicant said at the hearing that two days after he arrived home from the planation in 2009, the men who kidnapped him came to the family home, tied his and his father’s hands, hit his mother, asked where his uncle was and threatened them if the uncle did not come home in two days. The applicant told the Tribunal that people came looking for his uncle eight or nine times in 2009. The applicant then told the Tribunal that from 2010 to 2012 he did not have any problems and went to work. Aside from stones being thrown at the family home by unknown persons at night, there were no other problems in 2012. The Tribunal identified that this information was different from that in the applicant’s statutory declaration, where he stated that in 2012 the Sri Lankan military attended his house asking about his uncle’s whereabouts and that they bashed him and his father the first time they came, and bashed him, his father and his mother the second time they came.
(b)At the hearing before the Tribunal, the applicant said that after he left Sri Lanka the men did not come looking for his uncle. However, in his statutory declaration, the applicant said that after he fled Sri Lanka his family were again approached by the army and questioned and harmed in an attempt to find out information about his uncle.
I accept the Minister’s submission that the finding that the Tribunal did not accept the uncle was involved in a Tamil political party naturally flowed from the Tribunal’s comprehensive rejection of the February 2012 events and of the claimed interest in the uncle. The applicant’s claim that his uncle was involved in a Tamil political party was made in the context of his claim that he and his family were questioned about his uncle’s whereabouts by the authorities who said that he was involved in a Tamil political party. In circumstances where the Tribunal rejected the applicant’s claim that he and his family had been approached by the army looking for his uncle, it was open to the Tribunal to find that it was not satisfied that the applicant’s uncle was involved in a Tamil political party.
I also accept the Minister’s submission that, in any event, the no evidence ground of judicial review is not available where the finding challenged is in substance a negative one, that is, that the Tribunal did not accept a claim by the applicant. This was explained by Perram J in Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49; [2010] FCA 21, where his Honour said at [43]-[45]:
43.At the level of principle there is a difference between a finding of a positive fact for which there is no evidence, and a finding that something is not the case where there is some evidence to show that it is in fact so. In the former case, it is not rationally possible to justify the finding for there is no material from which it can proceed: ex nihilo nihil fit. Setting aside such a finding does not therefore impermissibly trespass into the arena of fact finding. Rather, it enforces the procedural requirement that fact finding be based on some evidence.
44.The analysis is quite different where a negative finding that something is not the fact is involved. If there exists evidence which contradicts that negative finding – that is, suggests that something is the fact – it remains rationally possible for the decision maker to arrive at the same conclusion simply by rejecting that evidence as not credible. For example, where a decision maker finds that a visa applicant has a criminal record and does so in the absence of any evidence to that effect, it is easy to conclude that the finding is vitiated for, on the material, only the opposite conclusion can rationally be reached. Where, however, a decision maker finds that a pension applicant did not work during a six month period, that conclusion is not logically excluded by evidence from the applicant that she did in fact work, for it is possible for the decision maker to disbelieve the applicant and therefore arrive at the same conclusion.
45.For that reason, the no evidence ground should not be available where the finding challenged is in substance a negative one. The authorities in this Court support, I believe, that approach: see N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 at [27] per Katz J; Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 at [38] per Katz J; Ordenzia v Minister for Immigration and Multicultural Affairs [2001] FCA 35 [27] per Katz J; He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 at [38] per Ryan J; Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186 at [21]-[25] per Tamberlin J; Sarancharkh v Minister for Immigration and Multicultural Affairs [2001] FCA 1461 [43]-[45] per Hill J. I do not regard the Full Court’s decision in Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 as being to the contrary. It follows that this ground is not made out.
The Tribunal did not need to have rebutting evidence to find that it was not satisfied that the applicant’s uncle was not involved in a Tamil political party: see, for example, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
Ground 1 is not established.
GROUND 2: DID THE TRIBUNAL CONFLATE THE APPLICANT’S CLAIM TO HAVE BEEN ABDUCTED IN THE PAST WITH INFORMATION REGARDING THE RISK OF HARM TO TAMIL RETURNEES FROM WESTERN COUNTRIES?
By ground 2, the applicant asserts that the Tribunal conflated his claim to have been abducted with country information concerning Tamil returnees from western countries. The error is said to be evident at [30] of the Tribunal reasons, where the Tribunal said (footnote omitted):
I have accepted that the applicant’s claims concerning his abduction are true and I find the treatment that he experienced constituted serious harm and significant harm. However, the applicant resided at his home and worked in the area for over three years after this incident and was not subject to any further adverse attention from these abductors or anybody else in that period. It is now eight years since the event and the Tribunal has not identified any recent reports of this being a particular issue for Tamil returnees from Western countries generally. For example, the Australian Department of Foreign Affairs and Trade in their most recent report do not refer to this happening and they state that the risk of mistreatment for the great majority of returnees is low. I find that the chance or risk that he will again be abducted for ransom or subjected to serious harm or significant harm from the abductors or anyone else is remote.
The applicant did not make submissions on this ground, except to the extent that the third point made in his oral submissions, addressed above, might be seen as relevant to this ground. The Minister submitted that the Tribunal was permitted to consider country information and the weight that it gave to the country information was a matter for the Tribunal. The Minister submitted that at [30] of its reasons, the Tribunal expressly grappled with the acceptance of the abduction claim, but also took into account other factors it identified, including the absence of further adverse action, the passage of time, together with the absence of recent reports in independent country information that might indicate a risk of harm to the applicant given certain features of his profile. The Minister submitted that the reliance placed by the Tribunal on the absence of country information supporting the applicant’s claim to face a risk of future harm was a factual matter for it, within jurisdiction.
At first glance, it appeared to me somewhat surprising that, in the context of considering the risk of harm to the applicant arising from the possibility of his past abduction being repeated, the Tribunal would refer to country information about the risk of harm to Tamil returnees from the west, without any explanation as to why that country information was relevant. After all, the applicant’s claim to have been abducted in the past was unrelated to the applicant’s future profile as a Tamil returnee from a western country, and yet the Tribunal appeared to link the past harm faced by the applicant and the lack of ongoing risk to Tamil returnees. This can particularly be seen in the sentence, ‘[i]t is now eight years since the event and the Tribunal has not identified any recent reports of this being a particular issue for Tamil returnees from Western countries generally.’
At the hearing, I asked Counsel for the Minister how the Tribunal’s reference to country information about the risk of harm to Tamil returnees from western countries was relevant to the risk of future harm based on the past abduction, given that the claim of past harm does not turn on the applicant being a returnee from the west. Counsel for the Minister submitted that it was relevant because it was part of the applicant’s cumulative profile on return that he would be a Tamil returnee from a western country. Counsel for the Minister submitted that [30] of the Tribunal reasons shows an accumulation of relevant characteristics of the applicant and the consideration of the likelihood of future harm based on two relevant features: the past harm he has faced and as a returnee from a western country.
I accept the submission advanced by Counsel for the Minister. The Tribunal later in its reasons separately addressed the risk of harm to the applicant as a Tamil failed asylum seeker returning from a western country. In the context of that discussion, the Tribunal gave reasons at [49] that are substantially similar to the reasons given at [30]. At [49], the Tribunal said (footnote omitted):
As found above though I have accepted that the applicant was kidnapped for ransom in 2009, he resided at his home and worked in the area for over three years after this incident and was not subject to any further adverse attention from these abductors or anybody else in that period. It is now eight years since the event and the Tribunal has not identified any recent reports of this being a particular issue for Tamil returnees from Western countries generally. For example, the Australian Department of Foreign Affairs and Trade in their most recent report do not refer to this happening and they state that the risk of mistreatment for the great majority of returnees is low.
This reinforces that at both [30] and [49], the Tribunal was considering the risk of harm to the applicant in the reasonably foreseeable future based on cumulative aspects of his profile. Although the Tribunal reasons might have been clearer, I am satisfied that they do not disclose jurisdictional error. Contrary to the applicant’s assertion, the Tribunal did not conflate the issues raised by the applicant’s past abduction and the country information about the risk of harm to Tamil returnees from the west. Rather, the Tribunal considered the cumulative effect of the past harm faced by the applicant, along with its findings that the applicant did not suffer further adverse attention after the incident, and that he would be returning with an additional aspect to his profile, namely, that he would be a Tamil returnee from a western country. It was open to the Tribunal to proceed in this manner and to rely on the country information in the way that it did.
Ground 2 is not established.
ADDITIONAL MATTER RAISED BY THE MINISTER
In both her written and oral submissions, Counsel for the Minister referred to [25] of the Tribunal reasons, where the Tribunal referred to a document examination report prepared by the Minister’s Department in relation to an identity document provided by the applicant. The document examination report was the subject of a certificate issued under s 438 of the Migration Act. The Tribunal considered that the certificate was not valid but in circumstances where the Tribunal did not have any concern about the applicant’s identity, it also considered that the contents of the document examination report was not relevant to the review.
Counsel for the Minister submitted that no possible jurisdictional error can arise from the s 438 certificate or the document examination report. I agree that the existence of these documents does not give rise to jurisdictional error in the present case, given that the document examination report was found not to be relevant to the review.
CONCLUSION
The applicant has not established that there is jurisdictional error in the Tribunal decision. It follows that the judicial review application must be dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 October 2023
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