BZADZ v Minister for Immigration

[2013] FCCA 1231

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1231

Catchwords:
MIGRATION – Application for a protection visa – review of a decision of a refugee review tribunal – whether the tribunal considered current country information – whether tribunal’s credit findings should be disturbed – impermissible merits review – no reviewable error disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 46A(2), 424A(l), 422B, 424A(3)(a), 425(1)

Abebe v Commonwealth (1999) 197 CLR 510
Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419
Plaintiff M61/2010E v Commonwealth of Australia (2012) 243 CLR 319
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407
SZCJJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499
Waterford v Commonwealth (1987) 163 CLR 54

Applicant: BZADZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 186 of 2013

Judgment of: Judge Jarrett

Hearing date: 27 June 2012

Date of Last Submission: 27 June 2012

Delivered at: Brisbane

Delivered on: 3 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Barataraj, directly instructed

Solicitor for the First Respondent: Mr White

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The amended application filed on 6 May, 2013 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 186 of 2013

BZADZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 8 March, 2013 the applicant seeks judicial review of a decision of a refugee review tribunal made on 14 February, 2013.  The tribunal affirmed a decision of a delegate of the first respondent made on 21 August, 2012 to refuse to grant to the applicant a Protection (Class XA) visa.

Background

1. The applicant is a citizen of Sri Lanka and a Tamil.  He claimed to fear harm on the basis of his ethnicity, his imputed political opinion as a perceived member of the Liberation Tigers of Tamil Eelam, and his membership of a particular social group namely “‘young Tamil males born in LTTE-controlled areas”. 

2. He claimed to have been detained by the Sri Lankan authorities in 2006 in a “round up” following a bomb blast in Colombo which killed 90 people.  At that time he was detained for one month on suspicion that he was an LTTE member.

3. At first instance, the applicant provided the first respondent’s delegate with a number of documents which included a letter from his Attorney dated 20 November, 2006 stating that he was remanded in custody following his arrest for one month but once it was proven that he had not participated in any kind of terrorist act he was released.  The applicant claimed that he was beaten whilst in detention and had scars on his face as a result. Of the two people who were detained with the applicant, he claimed that one was shot dead and the other went missing.

4. Following his release from detention, in February, 2007 the applicant travelled to India and lived there until he returned to Sri Lanka in October, 2010.

5. The applicant arrived in Australia on 11 April, 2012 and attended an entry interview on 6 June, 2012. On 8 July, 2012 the applicant was notified that the Minister had exercised his power under s.46A(2) of the Migration Act 1958 to permit him to lodge a protection visa application. He lodged such an application on the same day.

6. The applicant attended an interview with the first respondent’s delegate on 13 July, 2012 and later that day his representative provided a lengthy submission to the delegate. 

7. On 21 August, 2012 the delegate made a decision refusing to grant the applicant a protection visa.

8. On 4 September, 2012 the applicant lodged an application for the delegate’s decision to be reviewed by a refugee review tribunal.

9. By a letter dated 20 September, 2012 the tribunal invited the applicant to attend a hearing scheduled for 29 October, 2012.  The hearing was subsequently rescheduled to 4 December, 2012 and then to 6 December, 2012.

10. On 30 November, 2012 the applicant’s representative provided a submission to the tribunal which addressed the delegate’s decision.  In that submission, he expanded his claims to include a claim that he was a member of a particular social group, namely “failed returned asylum seekers from the west”.

11. The applicant attended the hearing on 6 December, 2012 and gave evidence.  At the conclusion of the hearing, the tribunal granted the applicant until 7 January, 2013 to provide a submission commenting on, or responding to, matters put to him during the hearing together with any further information that he thought would assist his application before the tribunal.

12. On 7 January, 2013 the applicant, through his representative, provided an unsigned statutory declaration, a translation of a death certificate and newspaper articles to the tribunal.  A signed copy of the statutory declaration was provided to the tribunal on 25 January, 2013.  In that statutory declaration, the applicant claimed that his father had bribed the Sri Lankan authorities to enable him to leave Sri Lanka without being detected and that following his return from India he had to constantly move around to hide from the authorities.  He claimed that his family was constantly harassed about his whereabouts.

The tribunal’s decision

1. On 14 February, 2013 the tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.

2. The tribunal found that the applicant was not a reliable witness and identified a number of issues which significantly detracted from the plausibility of his claims and his overall credibility.  At paragraph 98 of its reasons for decision, the tribunal said:

   “98. I accept that where there are clear inconsistencies, or where some claimed history is far-fetched or unrealistic, it may be that those claims, after careful consideration, cannot be accepted as being true.  In this case I found the applicant not to be a reliable witness.  In considering the applicant’s claims I observed during the course of the review a number of issues that significantly detract from both the plausibility of the applicant’s claims and his overall credibility.”

3. However, the tribunal accepted, despite significant reservations about the applicant’s credibility, that:

   a)the applicant was detained by the Sri Lankan authorities in 2006 as part of a round-up following a bomb explosion in Colombo;

   b)it was plausible that the applicant was beaten whilst in detention;

   c)the documents produced by the applicant indicated that he had been detained and had been found not to have any links to terrorists and released;

   d)the applicant had a subjective fear of harm as a Tamil if he was in Sri Lanka.

4. The tribunal did not accept that the applicant had been of any interest to the Sri Lankan authorities since his release and exoneration in 2006.

5. The tribunal found the applicant was not credible in relation to his claim that he was of continuing interest to the Sri Lankan authorities following his detention in 2006.   The tribunal noted that the applicant had been given certificates attesting to his innocence by a court and had obtained a passport in 2006.  Those matters, the tribunal considered, were inconsistent with the applicant being of continuing interest to the authorities.

6. The tribunal did not accept that the applicant was likely to have returned to Sri Lanka in 2010 if he had a well-founded fear of persecution by the Sri Lankan authorities.  That too, was inconsistent with the applicant being of continuing interest to those authorities.  It found the applicant’s claims of continual visits by the CID to his home from 2010 until after his departure from Sri Lanka in 2012 were implausible and an attempt to bolster his claims for protection. At paragraph 99 of the reasons for decision, the tribunal said:

   “99. In particular I found the applicant not to be credible when discussing his claim to be of continuing interest to the Sri Lankan authorities because of his detention in 2006 on suspicion of being associated with the LTTE.  I note that the applicant had been given certificates attesting to his innocence by the Court and had obtained a passport in 2006.  I do not accept that using an agent to obtain a passport means that the passport itself is false.  I note that the applicant then went to India in early 2007.  I accept that he did so illegally, avoiding Sri Lankan exit procedures.  I also note that he and his wife and children were given emergency travel documents in India to enable them to return to Sri Lanka in 2010 and that in 2012 the applicant then travelled legally to India through Colombo airport using his own passport.  I do not accept that the applicant would have returned to Sir Lanka in 2010 if he had a well-founded fear of persecution by Sri Lankan authorities.  I found the applicant’s claim of continuing visits by the CID to his home, beginning in 2010 and continuing after his departure from Sir Lanka in 2012, to be implausible and an attempt to bolster his claims for protection in Australia.”

7. The tribunal did not accept as plausible the applicant’s claim that any paramilitary group continued to call on his family searching for him, or that four people in a white van visited his mother’s house on one occasion looking for him.

8. The tribunal rejected the additional claims raised in the applicant’s statutory declaration of 25 January, 2013 and gave considerable weight to the fact that these aspects of his claims had not been raised on any previous occasion.  The tribunal found them to be “self-serving”, an attempt to address the concerns that the tribunal had expressed as to why the applicant would still be of continuing interest to the authorities and merely designed to bolster his claim to have a profile as an imputed supporter of the LTTE: reasons for decision at paragraphs 114 – 115.

9. The tribunal also gave weight to the fact that the applicant, together with his wife and children, decided to return to Sri Lanka in 2009 and that they applied for and received temporary Sri Lankan travel documents.  The tribunal gave weight to the applicant’s evidence that he was questioned at the airport on return and not charged with any offence relating to his departure.  Furthermore, the applicant again departed Colombo for India in 2012 using his own passport and did not encounter any difficulties.  The tribunal considered that fact was of significance.

10. The tribunal also considered the applicant’s claims that he:

    a)had visible scars as a result of his beating in 2006;

    b)he was questioned about his scars at the airport in 2010;

    c)the authorities who questioned him did not believe him; and

    d)although they had let him go, he thought they passed his name on to a paramilitary group. 

11. Given its concerns about the applicant’s credibility, the tribunal did not accept that his name had been passed on to a paramilitary group.  At paragraph 119 of the reasons for decision, the tribunal said:

    “119. I note that the applicant has claimed to have visible scars as a result of his beating by the authorities in 2006.  At the hearing I asked if these scars would be visible to anyone looking at him at the airport and whether this had been raised at the airport on his return in 2010.  The applicant said that he had been questioned about the scarring and also asked whether he had undergone any military training while in India.  The applicant said that although the people at the airport did not believe him they had let him go.  When I questioned this, I note that the applicant said that they had let him go because he was travelling with his wife.  He then added that he ‘thought’ they did not believe him but that they had passed his name on to a paramilitary group.  Given the concerns I have about the applicant’s credibility I do not find him to credible on this point.”

12. On the basis of independent country information before the tribunal, the tribunal found that there was not a real chance that the applicant would suffer serious harm in Sri Lanka by reason of his race, as a Tamil, his imputed political opinion or his membership of particular social groups namely, “young Tamil males born in LTTE controlled territory”, “young Tamil males from the north of Sri Lanka” and “Tamils from the North who were the subject of adverse CID attention” or any similar formulation, and that his fear of persecution on these bases was not well-founded: reasons for decision at paragraphs 110 –111.

13. The tribunal was not satisfied that the applicant had any profile with the Sri Lankan authorities as a supporter of the LTTE and was not satisfied that the applicant had a well-founded fear on this basis:

    “120. On the basis of all of the information before me, and given the findings I have made about the applicant’s credibility, I am not satisfied that the applicant has any profile with the Sri Lankan authorities as a supporter of the LTTE.  I find that there is not a real chance that the applicant will suffer serious harm if he were to return to Sri Lanka now or in the reasonably foreseeable future for reason of his imputed political opinion as a supporter of the LTTE, and that his fear of persecution is well-founded.”

14. In light of its findings that the applicant was of no adverse interest to the Sri Lankan authorities and on the basis of the independent country information before it about the treatment of returned failed asylum seekers, the tribunal did not accept that the applicant had a well-founded fear of persecution on the basis of membership of a particular social group namely “failed returned asylum seekers from  the west”, “Tamil failed  asylum seeker returning from the west” or “young Tamil failed  asylum seeker returning from  the west” or any similar formulations: reasons for decision at paragraphs 121 – 124.

15. The tribunal also expressly considered the applicant’s claims to fear harm as a failed asylum seeker in the context of assessing whether the applicant met the complementary protection criteria but the tribunal did not accept that there were substantial grounds for believing that he faced a real risk of significant harm as defined by s.36(2A) of the Act if he was returned to Sri Lanka: reasons for decision at paragraphs 128 – 132. The tribunal accepted that the Sri Lankan authorities might seek to obtain information from the applicant about his trip to Australia and his travelling companions but did not accept that being asked for this information amounted to significant harm.

16. The tribunal concluded that the applicant did not meet the refugee criteria or the complementary protection criteria for the grant of a protection visa.

The grounds of review generally

1. The applicant’s amended application filed on 6 May, 2013 contains four specific grounds of review.  The outline of argument delivered on the applicant’s behalf does not follow the grounds of appeal, but seeks to make the applicant’s case in a more general way.  It also contains what might appear to be two further grounds of review not otherwise captured by the specific grounds of review set out in the amended application.  The first relates to the tribunal’s assessment of the applicant’s credit.  The second relates to the way in which the tribunal determined the applicant’s claim for complementary protection and the country information that ought to have been considered by the tribunal.

2. Before considering the grounds individually, however, it is necessary to record part of the preamble to the applicant’s submissions:

   3. The Reviewer is bound to consider to act according to law, including applying the provisions of the Migration Act and provide procedural fairness.

   4.  M61 in (2010)272 ALR establishes that in undertaking the review the 1st Respondent (Reviewer) was bound the statements and declarations of the Applicant in conformation with up to date authoritative and other public information (country information) available  in support or against the applicant.

1. It is not entirely clear what is intended by those paragraphs, but to the extent that it is suggested that this is a case to which Plaintiff M61/2010E v Commonwealth of Australia (2012) 243 CLR 319 applies, it is clear that M61 has no application to the present matter.  That case concerned a challenge to a decision that was not made pursuant to the statutory regime that applies in this case.  This case concerns an application to review a decision, which is otherwise a privative clause decision, made under the Migration Act1958.

Credibility

1. In the written submissions delivered on his behalf, the applicant is critical of the adverse credit findings made about some of his claims by the tribunal.

2. The applicant accepted that certain credibility findings were made against him by the tribunal.  He sought to meet those credibility findings head-on by suggesting that the tribunal misused its power to make findings of credit against him.  He argued that the country information which the applicant wished to bring to my attention in the course of the hearing before me was consistent with his claims and therefore, the tribunal ought to have accepted him as credit worthy.

3. It is difficult to follow the applicant’s submissions on this point but what seemed to be argued was that the tribunal ought to have accepted the state of mind claimed by the applicant (i.e. that he felt in genuine fear of his life should be returned to Sri Lanka) because the country information to which the applicant pointed in the hearing before me was consistent with the applicant’s own experiences whilst living in Sri Lanka.

4. The tribunal dealt with the applicant’s credibility over the course of the nine paragraphs in its reasons for decision. It commenced the discussion about the applicant’s credibility by setting out some general propositions, none of which are controversial. The tribunal’s reasons record that the member was alive to the proposition that when assessing credibility, the tribunal should recognise the difficulties often faced by asylum seekers in providing evidence in support of their claims and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his or her claims. The tribunal recorded that it was not required to accept uncritically each and every assertion made by an applicant and that the tribunal need not have rebutting evidence available to it before it could find that a particular factual assertion by an applicant had not been made out.  The tribunal, after recording some other general propositions concerning the assessment of credit, went on to consider the specific claims raised by the applicant. 

5. In my view, the tribunal set out comprehensive reasons for rejecting the applicant’s credibility in respect of several significant issues.  It is important to record that the tribunal did not reject the applicant’s credibility outright on all issues. It considered the claims made by him carefully and rejected some of the claims he made.  It also accepted some of the claims that he made.  The tribunal gave detailed reasons for its approach.  The tribunal’s reasons set out the careful way that the tribunal member went about putting to the applicant the matters which concerned the member and which impacted upon the applicant’s credibility.

1. To the extent that the applicant’s submissions suggest that the tribunal applied a wrong principle when it made findings of credit against the applicant, no relevant principle was identified.  The arguments made (both orally and in writing) on the applicant’s behalf were directed to the merits of the tribunal’s conclusions and findings rather than the misapplication of legal principle.

2. The tribunal’s credibility findings were open to it for the reasons which it gave.  In any event, there is no error of law in the tribunal making a wrong finding of fact:  Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The tribunal’s finding that the applicant was not credible is a finding of fact par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (McHugh J) at [67].

Ground one

1. The first ground of review set out in the amended application is:

   1. The Reviewer took into irrelevant considerations in making the decision and denied natural justice to the Applicant.

   The Reviewer has the advantage of obtaining up to date information on the status of treatment of Tamils (whether Christian or Hindu) and even Muslims by the Sri Lankan Government or those associated with the regime namely the para military groups and other Sinhala citizens.  It is very clear that the Reviewer has failed to taken into consideration and relying on information obtained by the very authority being accused of atrocities. Information obtained by foreign government authorities through the embassies are often tainted as they are obtained through agents that are loyal to the atrocious regime and should not be taken seriously.  The UNHCR guideline relied upon by the Reviewer were dated. In fact the Applicant asked the Reviewer in the interview if UNHCR was indeed providing the true picture in providing such inference.

2. The reference to the “Reviewer” in this ground is intended to pick up the references made by the applicant’s Counsel in his submissions to M61, but for reasons that I have already expressed, that case is of no particular assistance in this application.

3. The first ground, and the applicant’s written submissions generally, take issue with the tribunal’s choice of country information.  For the purposes of this hearing, the applicant sought to rely upon an affidavit deposed by himself to which was annexed a compact disc upon which was recorded electronic copies of various materials said to be information “on the status of asylum seekers and other Tamils in Sri Lanka during the periods 2011 to current.  These articles are from independent private and NGO sources and they provide without doubt evidence that Sri Lanka is not a safe place for Tamils and asylum returnees are most vulnerable to arrest and torture.” 

4. The material in the compact disc annexed to the affidavit is:

   a)Channel 4 video presentation dated 31 May 2012;

   b)Channel 4 video presentation dated 7 November 2011;

   c)Amnesty  International Report Oct – Nov 2012;

   d)Article 19 submission to UNUN Council periodic review of SL Oct – Nov 2012;

   e)Asylum seekers deported from Christmas Island arrested in Sri Lanka and released on bail;

   f)Call for independent international investigation against alleged war crimes;

   g)Joint submission of Human Rights Group with individual cases of Human rights Violations in Sri Lanka;

   h)Ongoing torture in Sri Lanka from Freedom from Torture;

   i)Persecution of failed Asylum seekers in Sri Lanka May 2012;

   j)Reconciliation in Sri Lanka harder than ever;

   k)Sri Lanka- threats and harassments;

   l)Sri Lanka – a nightmare for Tamils;

   m)Sri Lanka Country of Origin information report 7 March 2012;

   n)Sri Lankan asylum seekers rejected by Australia and sent home say they have been arrested;

   o)Sri Lanka’s empty promise and denial of rights crisis exposed at UN;

   p)Submission on UPR on Sri Lanka by Asian Human Rights;

   q)Tamils deported from Britain being tortured;

   r)UK suspends deportation of Tamils to Sri Lanka.

5. None of that material was before the tribunal and none of it was considered by it for the purposes of its decision.  The applicant’s case, as explained in oral submissions was that it ought to have been.  The applicant (by his Counsel) argued that the tribunal ought to have sourced that material itself and ought to have preferred it to the country information that was in fact referenced by the tribunal. 

6. It is relevant to observe that some of that material, and in particular the last two items in the above list, was authored after the tribunal’s hearing and its decision.  Moreover, some of the material comprises media reports which would in any event be of questionable probity.

7. The tribunal’s reasons revealed that it took the following country information into account:

   a)UNHCR CORI Country Report, Sri Lanka, April 2010 (Report Commissioned by the Division of International Protection, UNHCR)

   b)UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka 5 July 2010

   c)2012 UNHCR country operations profile – Sri Lanka

   d)United Kingdom Border Agency “Sri Lanka – Country Information (COI) Report” 4 July 2011

   e)United Kingdom Border Agency “Sri Lanka – Operational Guidance Note, December 2011”

   f)United States State Department 2010 Human Rights Report: Sri Lanka 8 April 2011

   g)International Crisis Group “Reconciliation in Sri Lanka: Harder than Ever” Asia report number 209 – 18 July 2011

   h)International Crisis Group (ICG),Sri Lanka: A Bitter Peace, Asia Briefing No99: 11 January 2010,

   i)Freedom House, Countries at the Crossroads 2010, Country report, Sri Lanka’, 6 April 2010, date accessed 17 August 2010, Civil Liberties

   j)Amnesty International, Annual Report 2011, Sri Lanka, released on 13 May 2011, date accessed 19 May 2011

   k)Foreign & Commonwealth Office (FCO), Report of the FCO information gathering visit to Colombo, Sri Lanka 23-29 August 2009, 22 October 2009 align="left">l)International Crisis Group (ICG), War Crimes in Sri Lanka, 17 May 2010, Asia Report No191, available at - Accessed 18 April 2012.

   m)Department of Foreign Affairs and Trade (DFAT), ‘Parliamentary groups in post-war Sri Lanka’ dated 20 May 2010

   n)Department of Foreign Affairs and Trade (DFAT) ‘Situation of Tamils in Sri Lanka’ dated 20 September 2010

   o)Australian High Commission, Colombo 19 March 2010 ‘Failed Asylum Seekers removed to Sri Lanka’

   p)Australian High Commission Colombo ‘Update on Illegal departure’ 16 October 2012

   q)The International Commission of Jurists (ICJ) Briefing Note, Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects, September 2010 (referenced in UK Border Agency Report July 2011 – p.108 of green book)

   r)The Danish FFM report of October 2010

   s)A British High Commission letter of 14 September 2010

   t)A British High Commission letter dated 18 March 2011

   u)A British High Commission letter dated 3 October 2011

   v)UNHCR’s 2011 country operations profile for Sri Lanka

   w)DFAT Cable 16 October 2012

   x)UK Border Agency ‘SRI LANKA POLICY BULLETIN 1/2012’ October 2012

   y)Sri Lanka Operational Guidance Note (OGN) of April 2012

8. As the first respondent points out, it is well settled that the selection and weight to be given to country information is a matter for the tribunal: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] – [13]; Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] – [84].

9. In any event, the tribunal’s decision demonstrates that it had regard to information from a wide range of sources, including the UNHCR, the United Kingdom Border Agency, the United States State Department, Amnesty International and the Department of Foreign Affairs and Trade.  That country information was clearly relevant to the tribunal’s assessment of the applicant’s claims and was therefore not an “irrelevant consideration” as the applicant seems to contend.

10. The applicant argues that the tribunal ought to have concluded that his subjective fear of persecution should he return to Sri Lanka was well-founded based upon the country information that it had, and ought to have had before it.  However, the tribunal’s finding in this regard is a finding of fact for the tribunal.  The reasons for decision reveal that the tribunal was alive to the proper approach to the assessment of that matter: paragraph 13 of the tribunal’s reasons.  It measured the claims of the applicant against all of the country information available to the tribunal and made findings which were open on that material.

11. In my view, this ground of review has no merit.

Ground two

1. The second ground of review set out in the amended application is:

   2. The Reviewer erred in not taking into consideration facts that would be favourable to the Applicant and thereby denied natural justice to the Applicant. Some examples are:

   a. Even though the Applicant may not be part of the LTTE, his affiliation in political associations not in support of the controlling political party, is itself a reason for persecution.

   b. The Reviewer erred in not taking into consideration among others that even though the Applicant may not be part of the LTTE, his affiliation in political associations not in being a Tamil, is itself a reason for persecution. In this matter his friendship with persons known to be LTTE members is itself sufficient to be a target for Sri Lankan Army and para military.

   c. The Reviewer failed to take into consideration among others that the Applicant had genuine fear in returning to Sri Lanka on the grounds that His close relatives had been persecuted and that fleeing from Sri Lanka was only after a traumatic event suffered by the applicant.

   d. His association with a NGO itself is a reason for persecution, simply because the NGO identifies wrongs done to the citizens and the Applicant loses it protection once he leaves the NGO. This fact is one that has not been taken into consideration by the Reviewer.

2. Although the second ground of the amended application alleges that the “Reviewer” erred in not taking into consideration “‘facts” that would be favourable to the applicant and thereby denied him natural justice, it does not raise any proper ground of judicial review.  I accept the first respondent’s argument that this ground seeks to engage in impermissible merits review.

3. The tribunal’s reasons for decision make clear that the tribunal considered each of the applicant’s claims.  Specifically:

   a)the tribunal did not accept as credible the applicant’s claims to fear harm because of his friendship with members of the LTTE: reasons at paragraph 114;

   b)the tribunal accepted the applicant’s claims that he was in regular contact with his family members in Sri Lanka and they were “continuing with their daily lives”; and

   c)the applicant made no claim to fear persecution because of his involvement with an NGO.

4. There is no merit in this ground of review.

Ground three

1. The third ground of review set out in the amended application is:

   3. The Reviewer did not follow procedural fairness in the making of the decision.

   The Reviewer has a duty to ensure that all the procedures in the administration of his duties are followed correctly and including verifying any doubtful statements made by the Applicant and reviewing the application based upon up to date country information.

2. As the first respondent points out, this is a case to which s.422B of the Act applied. The tribunal was not required to afford the applicant common law natural justice or procedural fairness: Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214; SZCJJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7 of the Act.

3. The tribunal was under no obligation to “verify” the applicant’s “doubtful statements”.  As the first respondent points out:

   a)it was for the applicant to provide his evidence and arguments in sufficient detail to enable the tribunal to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214;

   b)the decision maker is not required to make the applicant’s case for him: Abebe (above) at [187]; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; and

   c)it was not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark upon: SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499.

4. The tribunal complied with its obligations under s.425(1) of the Act to invite the applicant to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The tribunal put to the applicant the numerous concerns it had with his claims, as well as the substance of country information before it, and gave the applicant an opportunity to give evidence and present arguments on those issues. That included the tribunal putting to the applicant and his advisor that the country information used by the tribunal, and in particular the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka 5 July 2010, was current.

5. To the extent that the applicant contends that the tribunal is required to consider up to date country information, I do not understand the first respondent to cavil with that proposition.  However, as pointed out above, the choice and weight to be given to particular country information is matter for the tribunal.

6. There is no merit in this ground of review.

Ground four

1. The fourth ground of review set out in the amended application is:

   4. Denial of Natural Justice: The Reviewer failed to make available up to date and relevant country information that would assist in making the correct decision and thereby subjected the Applicant to a denial of natural justice.

2. I accept the first respondent’s submission that to the extent that this is an allegation that the tribunal was obliged to provide the applicant with the country information before it and invite his comment on that information, s.424A(3)(a) of the Migration Act applied and the tribunal had no obligation to comply with s.424A(1) of the Act. Nonetheless, it is clear that the tribunal took steps to ensure that its concerns arising out of the country information that it possessed were put to the applicant for his comment.

3. I reject the applicant’s claim that the tribunal should have searched for and relied upon different country information to that referred to in its reasons for decision.  Certainly, the range of country information available to a tribunal is large and no doubt not every article of country information that might be considered by a tribunal will be considered by it in the course of a particular decision.  But that is a matter for the tribunal.

4. Moreover, the applicant had the opportunity after the tribunal hearing to provide to it any further information he wished. If the applicant disputed the substance of the country information put to him at the tribunal hearing it was open to him to avail himself of the opportunity to provide alternative information to the tribunal. He had the assistance of an advisor.  This ground has no merit.

Conclusion

1. None of the grounds relied upon by the applicant in his amended application, or the written submissions delivered on his behalf establish that the tribunal’s decision is affected by jurisdictional error.  The application must be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 September 2013

Associate: 

Date:  3 September 2013